People v. McIntyre

• Decision Date: 31 March 1977
• Docket Number: Docket No. 27854
• Citation: 254 N.W.2d 603,74 Mich.App. 661
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert McINTYRE, Defendant-Appellant. 74 Mich.App. 661, 254 N.W.2d 603
• Court: Court of Appeal of Michigan — District of US

Page 603

254 N.W.2d 603

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert McINTYRE, Defendant-Appellant.

Docket No. 27854.

74 Mich.App. 661, 254 N.W.2d 603

Court of Appeals of Michigan.

March 31, 1977.

Released for Publication June 21, 1977.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

[74 MICHAPP 661] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, [74 MICHAPP 662] Pros. Atty., Edward R. Wilson, Appellate Chief Arthur N. Bishop, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and V. J. BRENNAN and MICHAEL D. O'HARA, ^* JJ.

PER CURIAM.

After being convicted, on his plea of guilty, of attempting to carry a concealed weapon, ¹ defendant appeals as of right. For the reasons set forth below, we affirm.

I.

Because defendant initially challenges the propriety of his plea based upon his view that the plea was accepted without either his being fully represented by counsel or the inclusion of his waiver of the right to counsel, it is necessary to set forth in some detail the factual setting upon which his claim is based.

Prior to trial, defendant's court-appointed counsel proffered a motion to withdraw as counsel. At the hearing on this motion, defendant stated his displeasure with present counsel and his desire to either represent himself or seek retained counsel of his own choosing. After a full hearing on this matter, the trial judge granted the motion in part; the order providing that counsel be retained in an [74 MICHAPP 663] advisory capacity only. And, to further complicate matters, defendant never retained counsel, nor did he explicitly waive his right to counsel at the plea-taking.

It is strenuously urged that upon these circumstances the plea was per se invalid. We decline to accept this reasoning and feel constrained to examine the situation more closely.

There is, to be sure, an order contained in the record which limits counsel to an advisory capacity. This would be a serious debility for a plea acceptance in most cases. Here, however, we do not think undue focus should be placed upon this factor. To weigh this factor as defendant desires, would be to force this Court to don appellate blinders and ignore what actually transpired in the court below.

A review of the record shows that defendant was accorded full and effective representation. For example, subsequent to the above order, defense counsel requested an adjournment which was granted. Thereafter, plea negotiations which were entered into by him on defendant's behalf. These negotiations eventually resulted in the reduction of the original charge of carrying a concealed weapon to attempted carrying a concealed weapon. At the taking of the plea, defense counsel participated fully and advised the court that he had consulted with the defendant regarding the plea and thoroughly informed him of his rights and options. Moreover, he participated at sentencing and, again, fully represented the defendant's interests. Surely, from these facts, we can hardly conclude that the defendant was denied effective assistance of counsel. Accordingly, we find no reversible error was occasioned here.

[74 MICHAPP 664]

II.

Next, defendant attempts to escape his conviction by arguing that the trial court lacked jurisdiction to accept defendant's plea of guilty where, we are told, there was insufficient evidence presented at the preliminary examination to bind defendant over for trial.

Defendant embraces the following language in People v. Johnson, 396 Mich. 424, 444, 240 N.W.2d 729 (1976) for the proposition that this particular error is not waived by a plea of guilty:

"Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state's interest in punishing the defendant, or the state's authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples." (Footnote omitted.)

Because this dicta is at odds with prior decisions of both the Michigan Supreme Court and this Court ², the prosecutor invites us to disregard the language's clear import and follow prior precedent. We decline the invitation and, instead, find Johnson inapposite to the instant factual situation.

At trial, defense counsel brought a motion to [74 MICHAPP 665] dismiss the information based upon the same ground now...