People v. Nydam

• Decision Date: 24 March 1988
• Docket Number: Docket No. 97518
• Citation: 165 Mich.App. 476,419 N.W.2d 417
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Michael NYDAM, Defendant-Appellant. 165 Mich.App. 476, 419 N.W.2d 417
• Court: Court of Appeal of Michigan — District of US

Page 417

419 N.W.2d 417

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Michael NYDAM, Defendant-Appellant.

Docket No. 97518.

165 Mich.App. 476, 419 N.W.2d 417

Court of Appeals of Michigan.

Submitted July 30, 1987.

Decided Sept. 23, 1987.

Released for Publication Feb. 26, 1988.

Leave to Appeal Denied March 24, 1988.

[165 MICHAPP 477] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William A. Forsyth, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Atty., for the People.

Kelly, Henkel & David, P.C. by Michael F. Kelly and Lynn Marie Perry, Grand Rapids, for defendant-appellant.

Before CYNAR, P.J., and WEAVER and HAUSNER, ^* JJ.

PER CURIAM.

Following the Kent Circuit Court's denial of defendant's motion to strike the use of prior convictions, on December 17, 1986, defendant conditionally pled guilty to, and was convicted of, driving while under the influence of intoxicating liquor (OUIL), third offense, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325, preserving his right to appeal the denial of his motion.

Defendant attempts to collaterally attack his two prior OUIL guilty pleas and convictions of January 22, 1982, and June 25, 1985, asserting their legal infirmity because the district judge did not explain on the record the rights defendant would have had at trial and did not determine [165 MICHAPP 478] whether defendant's pleas were voluntary. Defendant maintains that these prior convictions may not be used to enhance punishment for his third OUIL conviction of December 17, 1986.

We disagree. Collateral attack is limited to situations where the constitutional requirements of People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972), ¹ are not met. However, since these safeguards apply to felonies and not to misdemeanors, People v. Tomlinson, 50 Mich.App. 655, 658-659, 213 N.W.2d 803 (1973), lv. den. 391 Mich. 824 (1974), collateral attack reaches only those situations where the Jaworski rights were required but not given. See People of Livonia v. Jasik, 393 Mich. 439, 442-443, 224 N.W.2d 838 (1975). See also MCR 6.201(D)(5); People v. Jelneck, 148 Mich.App. 456, 461-462, 384 N.W.2d 801 (1986), lv. den. 425 Mich. 876 (1986); People v. Cain, 148 Mich.App. 765, 769-771, 385 N.W.2d 632 (1985); People v. Crawford, 417 Mich. 607, 615, 339 N.W.2d 630 (1983) (Brickley, J., concurring). Because the right to counsel coupled with the voluntary act of pleading guilty or nolo contendere provides sufficient protection for misdemeanor defendants, Tomlinson, supra, 50 Mich.App. at 659, 213 N.W.2d 803 the prior misdemeanor pleas in this case are not subject to collateral attack.

Further, a guilty plea is constitutionally valid if, as in this case, from the totality of the record it appears to have been intelligently and voluntarily made. See, e.g., Carver v. Wharton, 532 F.Supp. 512 (S.D.Ga., 1982). United States v. Frontero, 452 F.2d 406 (C.A.5, 1971). Article I, section 17 of the Michigan Constitution creates no greater right [165 MICHAPP 479] against self-incrimination than does the Fifth Amendment of the United States Constitution. Paramount Pictures Corp. v. Miskinis 418 Mich. 708, 726, 728, 344 N.W.2d 788 (1984). Hence there is no basis for reading into the Michigan Constitution a right permitting collateral attack on prior plea-based convictions which, as here, were never appealed.

Plaintiff was represented by counsel at the time he entered his two prior OUIL guilty pleas. Having had the benefit of counsel, it would be unfair to permit such a defendant to raise for the first time several years after the fact a challenge to his...