People v. Rodriguez

• Decision Date: 18 November 1991
• Docket Number: No. 138082,138082
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Sylvia RODRIGUEZ, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 287

480 N.W.2d 287

192 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Sylvia RODRIGUEZ, Defendant-Appellee.

No. 138082.

Court of Appeals of Michigan.

Submitted Oct. 16, 1991, at Lansing.

Decided Nov. 18, 1991, at 9:10 a.m.

Released for Publication March 10, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Mark A. Gates, Pros. Atty., for the people.

Stewart D. McDonald, Alma, for defendant.

State Appellate Defender Office and Michigan Appellate Assigned Counsel System by Norris J. Thomas, Jr., Chief Deputy Defender, Detroit, amicus curiae.

Oakland County Prosecutor by Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Division, and Janice A. Kabodian, Asst. Pros. Atty., Pontiac, amicus curiae.

Criminal Defense Attorneys of Michigan by Joan Ellerbusch Morgan, and Harold Norris, Professor of Law, Detroit, amicus curiae.

Prosecuting Attys. Ass'n of Michigan by Robert E. Weiss, Genesee County Prosecutor, John D. O'Hair, Wayne County Prosecutor, Flint, and George E. Ward, Chief

Asst. Wayne County Prosecutor, Detroit, amicus curiae.

Before REILLY, P.J., and WEAVER and McDONALD, JJ.

McDONALD, Judge.

The people appeal by leave granted from a February 5, 1991, order rejecting a plea agreement. We reverse.

Defendant Sylvia Rodriguez was charged with receiving and concealing stolen property with a value in excess of $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. Pursuant to a plea agreement reached by the prosecutor, defendant, and defense counsel, defendant attempted to plead guilty to an amended count of attempted receiving and concealing stolen property with a value in excess of $100, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287, in exchange for dismissal of the original count. ¹ As part of the plea agreement, defendant agreed to waive her constitutional appeal of right, specifically reserving her right to appeal by leave granted, MCR 7.205, and her right as an indigent to appellate counsel at public expense. The trial court rejected the plea agreement, refusing to enforce the waiver. The court entered, with defendant's consent, an order rejecting the plea agreement and an order granting a stay of proceedings. In its order granting leave to appeal, the Court of Appeals invited interested associations to file appellate amicus curiae briefs.

The narrow issue we address on appeal is the validity of a defendant's waiver of the right to appeal from a guilty plea conviction and resulting sentence, while expressly reserving the right to appeal by leave granted and the right to appointed appellate counsel where indigent. We do not intend to express any opinion regarding the validity of waivers of the right to appeal from trial convictions.

There is no question that the Michigan Constitution affords every criminal defendant the right to appeal from a criminal conviction and sentence. Const.1963, art. 1, Sec. 20. The question to be answered is whether a defendant may waive this right in the context of guilty plea proceedings in exchange for charging or sentencing concessions.

The negotiation of plea agreements is a constitutionally accepted practice warranted not only by the absolute impossibility of trying the massive number of cases facing our law enforcement and judicial systems, but also because of the advantages the procedure affords both the defendant and the state. As our Supreme Court noted in People v. Killebrew, 416 Mich. 189, 197, 330 N.W.2d 834 (1982): "Given the prevalence of its use, it is not surprising that the Supreme Court of the United States has labeled plea bargaining 'an essential component of the administration of justice.' Santobello v New York, 404 US 257, 260; 92 SCt 495 30 LEd2d 427 (1971)." The procedure not only permits substantial conservation of prosecutorial and judicial resources, but it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition. It also enables the parties to avoid the delay and uncertainties of trial and appeal and permits swift punishment of the guilty with sentences tailored to the circumstances of the case at hand. See, generally, Santobello, supra; Killebrew, supra; People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022 (1989).

The public interest concerns underlying plea agreements will generally be served by enforcing a waiver of the right to appeal under circumstances such as those presented in this case. We agree with the Washington Supreme Court that to pronounce invalid per se an agreement by a defendant to waive an appeal as of right would operate in many cases to reduce substantially the incentive of prosecutors to offer what particular defendants and their attorneys might regard as worthwhile inducements to forego that right. State v. Perkins, 108 Wash.2d 212, 737 P.2d 250 (1987). It stands to reason that a party to agreements voluntarily entered into, but consistently repudiated by means of appeal, might become wary of entering into such agreements.

We therefore conclude public policy considerations support the plea agreement process. In doing so, we recognize the procedure normally leads to the entry of a guilty plea and that the process necessarily involves the surrender of many guaranteed rights, including the constitutional rights to a trial by jury and to confront witnesses. Const.1963, art. 1, Sec. 20; MCR 6.610 and 6.301.

Contrary to the position taken in a defense amicus curiae brief and the opinion of a panel of this Court in People v. Butler, 43 Mich.App. 270, 204 N.W.2d 325 (1972), the Michigan constitutional right to appeal is not absolute. Like other constitutional or statutory rights, the right to appeal may be waived, whether by neglect or conscious choice. Not only does a defendant often forego exercise of the right to appeal by choice, but the right may be automatically lost by failing to file the requisite claim of appeal within the time constraints contained in MCR 7.204. Additionally, a defendant's action or inaction may result in the waiver of the right to appeal certain issues. For example, by virtue of pleading guilty, a defendant waives appellate review of all nonjurisdictional defects in the prosecution, People v. New, 427 Mich. 482, 398 N.W.2d 358 (1986). Likewise, most sentencing issues not first presented to the trial court are considered waived for purposes of appeal, People v. Wilson, 159 Mich.App. 345, 406 N.W.2d 294 (1987), as are, in general, all issues raised for the first time on appeal and those issues arising from rulings to which a different or no objection at all was made at trial. Bloemsma v. Auto Club Ins Ass'n (After Remand), 190 Mich.App. 686, 476 N.W.2d 487 (1991); People v. Redman, 188 Mich.App. 516, 470 N.W.2d 676 (1991). In the case now being addressed, the waiver of defendant's right to appeal will result from her promise made as part of the plea agreement.

Any waiver of a constitutional right must be voluntary. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Killebrew, supra. Thus, before a trial court could accept a plea of guilty conditioned upon a defendant's waiver of the right to appeal, the court must determine if the waiver is voluntary, knowing, and intelligent. Further, the court must determine whether the agreement includes a waiver of the right to appeal the defendant's sentence as well as the conviction and, if so, whether the defendant understands and agrees. To determine whether the waiver meets these requirements, the court must consider all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience, and background of the defendant. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

The trial court plays another important role in cases such as the one presented here. Again contrary to the intimation contained in a defense amicus curiae brief as well as in Butler, supra, allowing defendants to waive their right to appeal will not result in the insulation by the prosecution of "guilty pleas accepted in contravention of standards which have been developed with painstaking care to afford defendants their basic rights." Butler, 43 Mich.App. at 280, 204 N.W.2d 325. Adoption of this position ignores the roles served by the trial court, prosecution, and defense counsel in effectuating a guilty plea. In such proceedings, the trial judge serves as a neutral and detached party to the plea negotiations and possesses an obligation to ensure that the agreed-upon disposition will serve the interests of justice. If the judge finds the agreement is not tailored to reflect the particular circumstances of the case or the offender, the judge may reject the bargain. Killebrew, supra. Lik...