People v. Perez

• Decision Date: 09 September 1985
• Docket Number: Docket No. 76140
• Citation: 143 Mich.App. 718,373 N.W.2d 202
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesus PEREZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 202

373 N.W.2d 202

143 Mich.App. 718

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

Docket No. 76140.

Court of Appeals of Michigan.

Submitted May 9, 1985.

Decided June 19, 1985.

Released for Publication Sept. 9, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Asst. Pros. Atty., for the People.

George S. Buth, Grand Rapids, for defendant on appeal.

Before SHEPHERD, P.J., and MAHER and W.R. PETERSON ^*, JJ.

PER CURIAM.

Defendant was charged with possession with intent to deliver less than 50 grams of heroin, M.C.L. Sec. 333.7401, subds. (1) and (2)(a)(iv); M.S.A. Sec. 14.15(7401), subds. (1) and (2)(a)(iv); knowing possession of less than 50 grams of cocaine, M.C.L. Sec. 333.7403, subds. (1) and (2)(a)(iv); M.S.A. Sec. 14.15(7403) subds. (1) and (2)(a)(iv); and as a third felony offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083 and M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085. Pursuant to a plea bargain, defendant pled guilty to a charge of attempt to possess with intent to deliver less than 50 grams of heroin, M.C.L. Sec. 333.7401, subds. (1) and (2)(a)(iv); M.S.A. Sec. 14.15(7401), subds. (1) and (2)(a)(iv); M.C.L. Sec. 750.92; M.S.A. Sec. 28.287, and to the third felony offender charge. He was subsequently sentenced to a prison term of 5 to 10 years, and now appeals as of right.

On appeal, defendant argues that his plea-based convictions should be reversed because the evidence against him (the heroin and cocaine found in his hotel rooms) was obtained in violation of his Fourth Amendment rights. Defendant contends that the affidavit upon which the search warrant for his hotel rooms was based did not provide probable cause for the issuance of the search warrant and that the police failed to follow the "knock and announce" rule, M.C.L. Sec. 780.656; M.S.A. Sec. 28.1259(6), before executing the warrant. We do not address these issues, however, because we find that, by pleading guilty, defendant waived his right to raise these issues on appeal.

In People v. Alvin Johnson, 396 Mich. 424, 443-444, 240 N.W.2d 729 (1976), the Supreme Court stated that jurisdictional claims and certain nonjurisdictional claims were not waived by a guilty plea:

"Thus, it is clear that the United States Supreme Court, while recognizing that certain rights of defendant may be waived by a subsequent plea of guilty, does not say that is true of all rights. 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." (Footnotes deleted.)

Defendant relies upon this statement as support for his right to raise his search and seizure issues on appeal. However, the statement in Alvin Johnson, supra, has since been modified by the Supreme Court in People v. Reid, 420 Mich. 326, 431-432, 362 N.W.2d 655 ...