People v. Ingram, Docket No. 124840
| Decision Date | 17 December 1990 |
| Docket Number | Docket No. 124840 |
| Citation | 465 N.W.2d 39,186 Mich.App. 615 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marion INGRAM, Defendant-Appellant. 186 Mich.App. 615, 465 N.W.2d 39 |
| Court | Court of Appeal of Michigan — District of US |
[186 MICHAPP 615] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., William A. Forsyth, Pros. Atty., Timothy K. McMorrow, [186 MICHAPP 616] Chief Appellate Atty., and Nadine Renee Dahm, Asst. Pros. Atty., for People.
E. Craig Smith, Grand Rapids, for defendant on appeal.
Before NEFF, P.J., and MAHER and HOOD, JJ.
Defendant pled guilty in the Kent Circuit Court of operating a vehicle while under the influence of intoxicating liquor, third offense, M.C.L. Sec. 257.625(6); M.S.A. Sec. 9.2325(6), and was ultimately sentenced to a term of 1 1/2 to 5 years' imprisonment. In this appeal as of right, defendant asserts that a 1982 district court plea-based conviction of OUIL was infirm and, therefore, improperly used to support his current conviction of OUIL (third offense). We reverse.
The felony complaint charging defendant with OUIL (third offense) indicated that defendant had four prior OUIL convictions. In March 1988, defendant moved to reduce the charge to OUIL (second offense), contending that three of the four prior OUIL convictions were infirm and could not be used for enhancement purposes (defendant conceded the validity of a 1983 Ottawa Circuit Court conviction). Circuit Court Judge George S. Buth, the judge to whom the case was originally assigned, agreed that two of the prior convictions were infirm (having been obtained without counsel), but ruled that a 1982 61st District Court conviction was not infirm, in that it was obtained in counsel's presence. Thus, because two valid OUIL convictions remained, defendant's motion to reduce the charge to OUIL (second offense) was denied. Defendant subsequently moved for rehearing, claiming that the 1982 district court conviction was also infirm because it was not taken in conformity with the [186 MICHAPP 617] applicable court rule, DCR, 785.4(d). 1 The motion was denied. Defendant then sought leave to appeal in this Court. However, his application was also denied.
On March 1, 1989, the case was reassigned to circuit court judge Dennis C. Kolenda, who accepted defendant's plea of guilty of OUIL (third offense), conditioned upon his right to challenge on appeal the use of the 1982 district court conviction. Before defendant was sentenced, however, it was brought to the trial court's attention that defendant's employer, the Department of Corrections, had a policy requiring the automatic termination of an employee convicted of a felony. 2 In response to this situation, the circuit court agreed to delay sentencing and invited defendant to bring another motion addressing the availability for enhancement purposes of the 1982 district court conviction. Thereafter, pursuant to an opinion dated June 6, 1989, Judge Kolenda, relying on People v. Nydam, 165 Mich.App. 476, 419 N.W.2d 417 (1987), concluded that, because defendant was represented by counsel and because there was nothing to indicate that his 1982 plea was other than intelligent or voluntary, the plea could not be collaterally attacked on the ground that the applicable plea-taking requirements were not adhered [186 MICHAPP 618] to. However, agreeing that the law was not entirely settled in this area, Judge Kolenda agreed to delay sentencing, as authorized by M.C.L. Sec. 771.1; M.S.A. Sec. 28.1131, so as to allow defendant another opportunity to pursue an appeal in this Court.
Rather than appealing, however, defendant went directly to the 61st District Court, where he successfully obtained an order setting aside his 1982 judgment of conviction and reinstating that case for trial. Due to this turn of events, defendant then filed a motion in the circuit court to withdraw his plea of guilty of OUIL (third offense). The circuit court, however, refused to recognize the validity of the district court's order, labeling it a "legal nullity" and finding it to be in violation of the law-of-the-case doctrine.
Defendant, whose sentencing status remained delayed, then filed another application for leave to appeal in this Court. However, while the application was pending, defendant was found to have violated a term of his delayed sentencing status, and he was subsequently sentenced to a term of 1 1/2 to 5 years' imprisonment. Defendant's application for leave to appeal was then dismissed without prejudice, and he now appeals as of right.
Defendant raises two issues on appeal: (1) whether the circuit court erred in failing to find that his 1982 district court plea was infirm and could not be used for enhancement purposes, and (2) whether the circuit court erroneously ruled that the district court order setting aside defendant's 1982 OUIL plea was a "legal nullity," thus precluding him from withdrawing his plea of guilty of OUIL (third offense).
With respect to the first issue, defendant claims [186 MICHAPP 619] his 1982 plea was infirm because the plea-taking requirements prescribed by the applicable court rule, DCR 785.4(d), were not adhered to and because he was not advised of his Boykin/Jaworski rights. 3 Before addressing the merits of this issue, however, we need to address a threshold matter concerning the status of defendant's 1982 plea. The prosecution states in its brief on appeal that it cannot determine whether the district court complied with the applicable court rule. Apparently, a transcript of the 1982 plea proceedings was never prepared, and one cannot presently be obtained because of the poor audio quality of the master recording of the proceeding. Suffice to say, however, that we have reviewed the record below and are satisfied that defendant sufficiently demonstrated that his 1982 district court plea was neither taken in conformity with the applicable court rule nor contained Boykin/Jaworski advice. 4
Thus, having accepted the fact that defendant's 1982 plea was not properly taken, we proceed to the merits of defendant's claim concerning whether the failure to comply with the applicable court rule and, in particular, the failure to give Boykin/Jaworski advice rendered the plea infirm for enhancement purposes.
At the time of defendant's 1982 plea-based conviction[186 MICHAPP 620] , DCR 785.4(d)(1) required only that a defendant pleading guilty in district court be advised "that if his plea is accepted, he will not have a trial of any kind, so he gives up the rights he would have at a trial." It was not until the rule was amended, effective February 1, 1988, that Boykin/Jaworski advice concerning the right of confrontation and privilege against self-incrimination was required to be given in district court. See MCR 6.610(E)(3)(b)(i)-(iii), formerly MCR 6.201(D)(5). Nevertheless, before the 1988 amendment, panels of this Court had reached different conclusions concerning the necessity of giving Boykin/Jaworski advice in district court and whether the failure to give such advice rendered the conviction infirm, so as to preclude its use for enhancement purposes. 5
In People v. Yost, 433 Mich. 133, 140, 445 N.W.2d 95 (1989), however, the split in this Court was addressed by our Supreme Court in a case in which a lower court had held that a 1986 district court plea-based OUIL conviction was infirm for failure to give Boykin/Jaworski advice even though the defendant was represented by counsel and his plea was otherwise taken in conformity with the applicable court rule. In holding that the prior OUIL conviction was not infirm, the Supreme Court stated:
Until 1988, district judges were not required to give explicit advice concerning the right of confrontation and the privilege against self-incrimination. This defendant's 1986 plea was properly taken under the court rule in effect at that time, and we can see no constitutional or legal reason why the 1986 plea should be found infirm. [Emphasis added.] [Id., p. 140, 445 N.W.2d 95.]
[186 MICHAPP 621] Our reading of Yost reveals two important foundations upon which the conclusion that the prior district court plea was not infirm rests. First, the fact that, at the time the plea was accepted, Boykin/Jaworski advice concerning the right of confrontation and privilege against self-incrimination was not required in district court. Second, the recognition that the defendant's plea was properly taken under the court rule in effect at the time. By individually stressing each of these aspects, we believe that implicit in the Court's decision is that a different conclusion would have been warranted had either of these situations been different.
In the instant case, defendant's plea was not properly taken under the court rule in effect at the time. Further, although Yost makes clear that the validity of defendant's 1982 plea is not affected by the failure to give advice concerning the right of confrontation and privilege against self-incrimination, we find that Boykin/Jaworski is nevertheless implicated inasmuch as advice concerning the defendant's right to trial, although required by the applicable court rule, was not provided. Thus, we believe that Yost warrants the conclusion that the failure to substantially comply with the applicable court rule governing the acceptance of pleas in district court, coupled in particular with the failure to advise defendant of his right to trial, rendered defendant's plea infirm, thereby precluding its use for enhancement purposes.
We conclude, therefore, that the circuit court [186 MICHAPP 622] erred in using defendant's 1982 district court plea...
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People v. Ingram
...defendant's conviction and remanded the case for entry of a conviction of OUIL, second offense, and resentencing thereon, 186 Mich.App. 615, 465 N.W.2d 39 (1990). On March 22, 1991, this Court granted leave to appeal. II. ANALYSIS Federal and state courts, have consistently found that consi......