People v. Knoll, Docket No. 69728

• Citation: 358 N.W.2d 926,137 Mich.App. 701
• Decision Date: 06 December 1984
• Docket Number: Docket No. 69728
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank KNOLL, Defendant-Appellant. 137 Mich.App. 701, 358 N.W.2d 926
• Court: Court of Appeal of Michigan (US)

Page 926

358 N.W.2d 926

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank KNOLL, Defendant-Appellant.

Docket No. 69728.

137 Mich.App. 701, 358 N.W.2d 926

Court of Appeals of Michigan.

Submitted March 15, 1984.

Decided July 25, 1984.

Released for Publication Dec. 6, 1984.

[137 MICHAPP 702] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the people.

Thomas J. Bleau, Bay City, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and ALLEN and KEYES, ^* JJ.

PER CURIAM.

Defendant pled guilty to delivery of a controlled substance (LSD), M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401), and was sentenced on December 20, 1982, to a term of from 56 to 84 months imprisonment. He now appeals as of right.

Defendant first claims on appeal that he was entrapped by police and his conviction must therefore be reversed and the charge dismissed. We disagree.

While entrapment is considered the equivalent of a jurisdictional defect and is therefore not waived by defendant's plea of guilty, People v. White, 411 Mich. 366, 387, 308 N.W.2d 128 (1981), the defense is waived if the defendant clearly abandons the entrapment claim at the trial court level. Here, at the plea-taking proceeding, the following discussion occurred:

"THE COURT: There was originally scheduled for this morning a hearing on a motion asserting that the defendant was entrapped. I have since been advised that the parties have entered into an agreement which would result in the defendant entering a plea of guilty. Is that your understanding, [defense counsel]?

"[DEFENSE COUNSEL]: That's correct, your Honor.

"THE COURT: And, [Assistant Prosecutor]?

"[ASSISTANT PROSECUTOR]: Yes, your Honor.

[137 MICHAPP 703] "THE COURT: Is it intended by the defendant to abandon the entrapment issue?

"[DEFENSE COUNSEL]: Yes, your honor.

* * *

"THE COURT: A motion was filed on your behalf, asking that the Court consider whether or not under the law you were entrapped in connection with this offense. You're entitled to have that heard and determined. Do you understand that?

"DEFENDANT: Yes.

"THE COURT: And if it was determined that you were legally entrapped, the charges would be dismissed against you in their entirety. Do you understand that?

"DEFENDANT: Yes.

"THE COURT: And [defense counsel] has indicated that you do not want me to hear that motion. Is that correct?

"DEFENDANT: Yes.

"THE COURT: Okay. Or anyone else--any other judge. You just don't want it heard, is that right?

"DEFENDANT: Yeah. Yes, sir."

Although defendant was clearly given the opportunity to retract his proffered guilty plea and proceed to an evidentiary hearing on the issue of entrapment, he specifically and voluntarily chose to waive this defense. As in People v. Virga, 111 Mich.App. 807, 808, 314 N.W.2d 765 (1981), "we are persuaded that defendant has waived his right to request from this Court the identical relief which the trial court sua sponte offered and defendant knowingly rejected". As in Virga, defendant was offered the opportunity to have his plea set aside and the merits of his defense of entrapment submitted to the fact finder. Also as in Virga, he chose not to do so. He may not now base a claim of judicial error on his own free and informed exercise of choice. See also People v. Douglas, 122 Mich.App. 526, 530, 332 N.W.2d 521 (1983).

[137 MICHAPP 704] Defendant next argues that his sentence was disproportionate to the crime involved and therefore constitutes cruel and unusual punishment and an abuse of the trial court's discretion. We disagree.

Although defen...