People v. Hill

• Decision Date: 06 November 1978
• Docket Number: Docket No. 77-3094
• Citation: 273 N.W.2d 532,86 Mich.App. 706
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen HILL, Jr., Defendant-Appellant. 86 Mich.App. 706, 273 N.W.2d 532
• Court: Court of Appeal of Michigan — District of US

Page 532

273 N.W.2d 532

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen HILL, Jr., Defendant-Appellant.

Docket No. 77-3094.

86 Mich.App. 706, 273 N.W.2d 532

Court of Appeals of Michigan.

Nov. 6, 1978.

Released for Publication Jan. 12, 1979.

[86 MICHAPP 707] James R. Neuhard, State Appellate Defender by Rolf E. Berg, Deputy State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James D. Norlander, Pros. Atty., Keith D. Roberts, Asst. Atty. Gen., Director, Pros. Attys. Appellate Service, for plaintiff-appellee.

[86 MICHAPP 708] Before DANHOF, C. J., and V. J. BRENNAN and CAMPBELL, ^* JJ.

DANHOF, Chief Judge.

Defendant pled no contest, GCR 1963, 785.7, to a charge of possession of heroin, M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a), and was sentenced to from two and one half to four years in the state prison. He appeals his conviction on the grounds that critical evidence received at his preliminary examination had been seized in violation of the Fourth Amendment and that the circuit judge, contrary to court rule, failed to properly specify reasons for accepting defendant's plea.

I

At preliminary examination the magistrate received evidence of defendant's heroin possession, which was obtained by officers conducting a warrantless search and seizure incident to defendant's arrest. The magistrate denied defendant's motion to suppress that evidence on Fourth Amendment grounds. Before trial, defendant moved to quash the information against him. In that motion he did not raise his Fourth Amendment defense, but made a general attack on the sufficiency of the evidence. Before the circuit court could rule, however, defendant changed his original plea to nolo contendere.

On these facts, under applicable law and policy, defendant is precluded on appeal from challenging the denial of his motion to suppress. In People v. Goodman 58 Mich.App. 220, 227 N.W.2d 261 (1975), this Court held that a Fourth Amendment challenge to evidence introduced at trial is a nonjurisdictional defense that is waived on appeal by [86 MICHAPP 709] a plea of nolo contendere. Defendant argues that the Michigan Supreme Court's decision in People v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), compels us to an opposite result. In Johnson, decided after Goodman, three Justices agreed to expand the class of rights that survive a guilty plea ¹ to include those that would be a "complete defense" to the state's prosecution. Among other examples, the opinion by Justice Williams cites "those (defenses) relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed". Johnson, supra, at 444, 240 N.W.2d at 739-40. Defendant plausibly maintains that Johnson preserves his asserted constitutional defense since the suppression of evidence seized incident to his arrest would have eliminated the state's ability to proceed with its charge.

For two reasons, we determine that Johnson does not control the outcome of this case. The precise holding in Johnson is that the defense of double jeopardy is a complete defense to a criminal prosecution and, therefore, is not waived by defendant's guilty plea in a prior proceeding. Justice Williams defined a "complete defense" as any defense that "undercut(s) the state's interest in punishing the defendant, or the state's authority or ability to proceed with the trial". Id. (Footnotes omitted.) Because the plea-waiver rule serves important state policies, we interpret this definition narrowly. In light of the vast majority of criminal cases concluded by guilty plea, see Schwartz, Note, The Guilty Plea as a Waiver of "Present but Unknowable" Constitutional Rights: [86 MICHAPP 710] The Aftermath of the Brady Trilogy, 74 Colum.L.Rev. 1435, fn. 1 (1974) (hereinafter Guilty Plea as Waiver ), the scope of the plea-waiver doctrine is an issue of immense practical importance. It should be resolved by reference to the competing state and individual interest involved.

From the state's view, plea waiver serves the important community interests of judicial economy and finality. Accordingly, it has been firmly established in Michigan, see People v. Ginther, 390 Mich. 436, 440, fn. 1,212 N.W.2d 922, 924, fn. 1 (1973), and has been approved by the United States Supreme Court. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). On the other hand, state rules that impinge upon individual rights should be carefully drawn so as to actually promote the asserted state interests and not sweep too broadly. Balancing these competing concerns, we conclude the scope of the plea waiver doctrine generally should be consistent with the function of the guilty plea, which is to relieve the state from proving defendant's guilt.

In establishing a more specific test, we are aided by the decisions of the lower Federal courts. In defining exceptions to Brady, the Federal courts seem to have established that a "complete defense" is one that "reaches beyond the factual determination of the defendant's conduct". Guilty Plea as Waiver, supra, at 1447. They apparently reason that a "defendant asserting such a right does not dispute participation in the proscribed activity but by reason of a subsequently recognized right questions the capacity of the government to punish that activity". Id. We believe the "complete defense" exception in Michigan should have the same scope. Defects that merely impugn the accuracy of a bindover or conviction are [86 MICHAPP 711] waived by defendant's guilty plea; they are inherently subsumed by the plea, which conclusively resolves the issue of defendant's guilt.

Theoretically, it still might make sense to distinguish fact-finding defects in the preliminary examination from similar imperfections at trial, since the sufficiency of evidence at preliminary examination determines whether there will be a trial at all. ² That logical difference is nevertheless without practical significance; in either situation we would be forced to look beyond the defendant's plea and factually evaluate the state's unpresented case. ³

Therefore, we hold that Johnson supplies the rule for cases in which defendants assert an absolute defense, not including defenses which [86 MICHAPP 712] relate to establishing the fact of criminal conduct. ⁴ Since defendant's asserted defense relates to the sufficiency of evidence to support a factual finding that he probably committed the offense charged, it does not survive his plea of nolo contendere.

As a second reason for finding Johnson inapplicable to this case, we assume Arguendo that defendant's asserted right is the Type that is within the "complete defense" exception, but nevertheless hold that defendant lost his right to assert it by failing to make a timely objection below. In People v. McIntyre, 74 Mich.App. 661, 254 N.W.2d 603 (1977), this Court held that, despite Johnson, a defendant cannot challenge the sufficiency of evidence presented at his preliminary examination after a plea of guilty when he did not press the circuit court to rule on that defense. The panel reasoned that: "Inasmuch as Johnson grounded its decision on what the guilty plea itself waives, we do not think it applies where the inaction of the defendant causes the purported error to be waived." Id., at 665, 254 N.W.2d at 605. In the instant proceedings, defendant moved to quash his information after preliminary examination, but did not allege any constitutional error nor await a ruling by the circuit judge. Following McIntyre, we believe defendant's inaction waived his right to challenge evidence received at his preliminary examination. To hold otherwise, as the panel noted in McIntyre, would mean that the [86 MICHAPP 713] magistrate's decision to bind over would have to be reviewed by the trial court in every plea of guilty or by this Court, performing the functions of a circuit court, whenever defendants failed to press the issue below.

II

Defendant's second ground for appeal implicates GCR 1963, 785.7(3)(b)(i). ⁵ That provision, which partially replaced GCR 1963, 785.7(3)(d) as of December 7, 1975, requires the court, before accepting a defendant's plea of nolo contendere, to "state why a plea of nolo contendere is appropriate". While there is scarce case law interpreting GCR 1963, 785.7(3)(b), the Michigan Supreme Court seems to interpret it substantially the same as the old rule. See People v. Jones, 399 Mich. 873 (1977). Therefore, in determining whether defendant's no contest plea was appropriate in this case, we must evaluate the judge's stated reasons according to the "interests of the defendant and the proper administration of justice". For standards we look to the purposes of the plea as opposed to the public's interest in rejecting it. We keep in mind generally that a nolo contendere plea is accepted only as a matter of grace, under special circumstances. Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975).

The basic purpose of the plea is to protect a defendant from unreasonable collateral effects of his pleading guilty. See Anno.: Plea of Nolo Contendere or non vult contendere, 89 A.L.R.2d 540, 548-49. Hence, it has been most often used to avoid exacting an admission that could be used [86 MICHAPP 714] against the defendant in other potential litigation. United States v. Jones, 119 F.Supp. 288 (S.D.Cal., 1954), (avoiding admissions is the main, if not only, modern purpose of nolo contendere). Similarly, it has been accepted from defendants who are technically guilty of criminal laws intended to reach only malicious violators or of criminal acts that are civil in nature but subject to criminal penalties. Anno., Supra. Weighing against the acceptance of a nolo contendere plea are a high degree of moral culpability on the part of a defendant and a potentially adverse effect on law enforcement...