People v. New

• Decision Date: 30 December 1986
• Docket Number: Docket Nos. 74938,76730
• Citation: 398 N.W.2d 358,427 Mich. 482
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Eugene NEW, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesus PEREZ, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 358

398 N.W.2d 358

427 Mich. 482

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Eugene NEW, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesus PEREZ, Defendant-Appellant.

Docket Nos. 74938, 76730.

Supreme Court of Michigan.

Argued May 7, 1986.

Decided Dec. 30, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James L. Stropkai Asst. Atty. Gen., and Fred R. Hunter, III, Pros. Atty., Allegan, for the people in New.

Frank J. Kelley, Atty. Gen. Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Timothy K. McMorrow, Grand Rapids, Chief Appellate Atty., for the people in Perez.

James S. Ainsworth, Allegan, Patrick W. Priest, Three Rivers of counsel, for defendant-appellant New.

George S. Buth, Grand Rapids, for defendant-appellant, Perez.

CAVANAGH, Justice.

These consolidated cases call upon us to decide whether a criminal defendant, after pleading guilty or nolo contendere, may raise as error on appeal the denial of a motion to suppress evidence or the denial of a motion to quash the information because of insufficient evidence at the preliminary examination. We hold that by pleading guilty or nolo contendere defendants have waived their right to raise these issues on appeal. Since this issue is dispositive of both cases, we do not reach defendants' claims that their pretrial motions were erroneously decided.

I

Defendant Roy New was originally charged with first-degree felony murder ¹ and unarmed robbery. ² Prior to trial, New filed several motions, including a motion to quash the information, asserting that insufficient evidence was presented at the preliminary examination. He also filed a motion to suppress the use of statements he had given to the police after his arrest. Both motions were denied by the trial court. Pursuant to plea negotiations, New subsequently pled nolo contendere to an added charge of second-degree murder ³ and was sentenced to serve a prison term of thirty to fifty years.

New appealed his plea-based conviction to the Court of Appeals. The Court of Appeals panel refused to reach the merits of New's appeal, holding that he waived his right to appeal the trial court's decision on his pretrial motions by pleading nolo contendere.

Defendant Jesus Perez was charged with possession with intent to deliver less than fifty grams of heroin, ⁴ possession of less than fifty grams of cocaine, ⁵ and as an habitual offender, third offense. ⁶ Perez filed a motion to suppress evidence of the narcotics seized from the hotel room he was occupying at the time of his arrest. The trial court denied Perez' motion to suppress this evidence. Subsequently, Perez, pursuant to a plea agreement, pled guilty to the charge of attempted possession with intent to deliver less than fifty grams of heroin ⁷ and to the habitual offender, third offense charge. Perez was sentenced to serve a prison term of from five to ten years.

Perez appealed to the Court of Appeals, which affirmed his plea-based convictions upon the grounds that Perez waived his right to appeal the denial of his suppression motion by pleading guilty. See People v. Perez, 143 Mich.App. 718, 373 N.W.2d 202 (1985).

II

A

In the guilty-plea trilogy of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), and in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), the Supreme Court recognized that one effect of a guilty plea is to preclude a defendant from challenging constitutional violations alleged to have occurred before the plea. As the Court stated in

Tollett:

"[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." 411 U.S. 267, 93 S.Ct. 1608.

In Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), the Court explained its holdings in the Brady trilogy and in Tollett as follows:

"Neither Tollett v Henderson, 411 US 258 [93 S.Ct. 1602, 36 L.Ed.2d 235] (1973), nor our earlier cases on which it relied, e.g., Brady v United States, 397 US 742 [90 S.Ct. 1463, 25 L.Ed.2d 747] (1970), and McMann v Richardson, 397 US 759 [90 S.Ct. 1441, 25 L.Ed.2d 763] (1970), stand for the proposition that counseled guilty pleas inevitably 'waive' all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 US 266. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar the claim." 423 U.S. 62-63, n. 2, 96 S.Ct. at 242, n. 2. (Emphasis changed.)

Thus, the United States Supreme Court has determined that where a defendant's claim is one that would preclude the state from ever prosecuting the defendant for the crime regardless of his factual guilt, a guilty plea does not waive the defendant's right to subsequently raise that claim. ⁸

B

This Court has held, as a general rule, that a plea of guilty "waives all nonjurisdictional defects in the proceedings." People v. Alvin Johnson, 396 Mich. 424, 440, 240 N.W.2d 729 (1976), cert den sub nom Michigan v. Johnson, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976), citing People v. Ginther, 390 Mich. 436, 440, 212 N.W.2d 922 (1973). In Alvin Johnson, we addressed the effect of a plea of guilty on the constitutional defense of double jeopardy. Therein, we limited the broad scope of the plea- waiver rule, holding that a guilty plea does not waive defendant's right to appeal from an adverse decision on his double jeopardy defense. 396 Mich. 444-445. We set forth the following test to be used to distinguish between those rights or defenses which are waived by a plea of guilty and those rights or defenses which may be asserted despite 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. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right." 396 Mich. 444, 240 N.W.2d 729. (Emphasis added.)

The above-emphasized statement in Alvin Johnson was not only a misreading of the previously cited federal authority, it also was not necessary to the decision of that case, as defendant did not present any such claims. Hence, the statement that the defense of the failure to suppress illegally obtained evidence and the defense of insufficient evidence to bind over at the preliminary examination are examples of claims which survive a guilty plea is obiter dictum. ⁹

We next addressed the effect of a guilty plea on an appeal in the case of People v. White, 411 Mich. 366, 308 N.W.2d 128 (1981). In White, this Court unanimously held, in separate opinions, that the defense of entrapment was not waived by a plea of guilty. 411 Mich. 386-387, 399, 308 N.W.2d 128. The majority opinion stated that the defense of entrapment "does not involve an assessment of guilt or innocence, but rather expresses a policy that there should be no prosecution at all." 411 Mich. 387, 308 N.W.2d 128. Entrapment was determined to be "like a jurisdictional defect." Id.

Similarly, the well-reasoned separate opinion noted that if successful, the entrapment defense provides " 'a complete defense to a criminal prosecution' and undercuts 'the state's interest in punishing the defendant' and 'authority or ability to proceed with the trial.' " 411 Mich. 393, 308 N.W.2d 128 (Moody, J., concurring in part and dissenting in part), quoting Alvin Johnson, 396 Mich. 444, 240 N.W.2d 729.

Recently, this Court discussed the related issue of the validity of a conditional plea of guilty in the case of People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984). The defendants in Reid pled guilty, but reserved their right to appeal a denial of their motions to suppress evidence obtained pursuant to a search warrant. We held that a defendant may appeal from a denial of a Fourth Amendment or a Const. 1963, art. 1, Sec. 11 search and seizure claim where "the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was violated is sustained and the defendant, the...