People v. Riley, Docket No. 77-1447

• Decision Date: 27 February 1979
• Docket Number: Docket No. 77-1447
• Citation: 88 Mich.App. 727,279 N.W.2d 303
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cleveland RILEY, Defendant-Appellant. 88 Mich.App. 727, 279 N.W.2d 303
• Court: Court of Appeal of Michigan — District of US

Page 303

279 N.W.2d 303

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cleveland RILEY, Defendant-Appellant.

Docket No. 77-1447.

88 Mich.App. 727, 279 N.W.2d 303

Court of Appeals of Michigan.

Feb. 27, 1979.

Released for Publication June 15, 1979.

[88 MICHAPP 729] Gerald R. Goulet, Detroit, for defendant-appellant.

[88 MICHAPP 728] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and BRONSON and GILLESPIE, ^* JJ.

PER CURIAM.

Defendant pled nolo contendere to the crime of attempted delivery of a controlled substance contrary to M.C.L. § 335.341; M.S.A. § 18.1070(41) and M.C.L. § 750.92; M.S.A. § 28.287. He was sentenced to a term of two to five years in prison and now appeals as of right.

The sole question on appeal is whether defendant's nolo plea acted as a waiver of his right to challenge the legality of the search and seizure which produced the evidence against him. We hold that it does.

First, it should be noted that for purposes of the plea-waiver doctrine it is immaterial whether defendant pleads guilty or nolo contendere. See People v. Goodman, 58 Mich.App. 220, 222, 227 N.W.2d 261 (1975). Therefore, the effects of defendant's plea must be governed according to the standards governing guilty pleas.

In recent years, the United States Supreme Court has expanded the traditional test relating to guilty pleas. Traditionally, a defendant could only attack a guilty plea on the ground that it was not voluntarily and intelligently made. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), however, the Supreme Court stated that a defendant could also challenge a guilty plea on the ground that the alleged defect "went to the very power of the State to bring the defendant into [88 MICHAPP 730] court to answer the charge brought against him". The so-called jurisdictional defect test set forth in Blackledge was further explained in Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). In Menna the Court stated that a guilty plea is a reliable admission of factual guilt and removes this issue and all alleged constitutional defects concerning factual guilt from subsequent attack. The plea does not, however, constitute a waiver of those constitutional defects which are irrelevant to defendant's factual guilt of the crime charged. Accord, Journigan v. Duffy, 552 F.2d 283 (C.A.9, 1977).

A guilty plea waives all defects that go to whether the government can actually prove its case, but does not waive those defects which would preclude the government from convicting defendant even if it could prove its case (E. g., invalid statute, double jeopardy).

When this test is applied to the present case, it seems clear that defendant's nolo plea precludes him from challenging the validity of the search and seizure. ¹ By challenging the legality of the [88 MICHAPP 731] seized evidence, defendant is attacking the government's ability to prove its case. As such, it is the type of error which is waived by the plea. People v. Hill, 86 Mich.App. 706, 273 N.W.2d 532 (1978).

We are aware that certain language used by the Michigan Supreme Court in People v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), ² appears to lead to a different result. However, since this particular language was not necessary to the decision of the case it is merely dicta and is not binding on this Court. Since we are of the opinion that the balance between the competing interests involved in the plea-waiver rule needs to be struck differently, we decline to follow the Johnson dicta. See Hill, supra.

Finally, it should be noted that although defendant moved to suppress the evidence in question, he did not follow through on the motion and request an answer on it from the court. Instead, he chose to abandon the motion and plead. This Court has continually stated that the rule announced in Johnson does not apply when defendant raised the alleged error and then through his own inaction waived it. Hill, supra; People v. McIntyre, 74 Mich.App. 661, 254 N.W.2d 603 (1977). We see no justifiable reason for allowing a defendant to raise on appeal an issue that he was aware of but voluntarily abandoned in the lower court.

[88 MICHAPP 732] Affirmed.

RILEY, Presiding Judge (concurring in part and dissenting in part).

I concur in the result reached because of defendant's abandonment of his previous motion to suppress. However, I write separately to express my disagreement with the majority's application of the plea-waiver doctrine to situations involving 4th Amendment claims of illegally seized evidence, and its statement that "a guilty plea waives all defects that go to whether the government can actually prove its case". I would hold, consistent with the "complete defense" rationale of People v. Johnson, 396 Mich. 424, 444, 240 N.W.2d 729 (1976), that defendant's nolo plea in the present case did not waive his right to challenge the legality of the search and seizure. I am not persuaded that a proper balance between the competing interests of the State and individual should necessarily entail the need of a roulette-type determination by defendant regarding the preservation of his claim for appeal. As in the instant case, where the State can readily establish its proofs through the admission of constitutionally defective evidence, the majority's holding, in effect, forces defendant to pursue an expensive and futile course of litigation solely to preserve for our review an issue based upon denial of his pretrial motion to suppress. The trial itself resolves no genuinely contested disputes, but only results in a wasted procedure, with the real question to be decided upon the subsequent appeal. See People v. Smith, 85 Mich.App. 32, 50, 270 N.W.2d 697 (1978) (Cavanagh, P. J., concurring in part and dissenting in part). In my opinion, a rule which compels the defendant to go to trial where he might otherwise have...