People v. Smith

• Decision Date: 01 June 1990
• Docket Number: Docket No. 110110
• Citation: 455 N.W.2d 719,183 Mich.App. 537
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rosie SMITH, Defendant-Appellant. 183 Mich.App. 537, 455 N.W.2d 719
• Court: Court of Appeal of Michigan — District of US

Page 719

455 N.W.2d 719

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rosie SMITH, Defendant-Appellant.

Docket No. 110110.

183 Mich.App. 537, 455 N.W.2d 719

Court of Appeals of Michigan.

Submitted Dec. 13, 1989.

Decided May 7, 1990.

Released for Publication June 1, 1990.

[183 MICHAPP 538] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and John P. Puleo, Asst. Pros. Atty., for the People.

Wanda R. Cal, Detroit, for defendant-appellant on appeal.

Before GRIFFIN, P.J., and GILLIS and SAWYER, JJ.

SAWYER, Judge.

Defendant pled guilty to prison escape. M.C.L. Sec. 750.193; M.S.A. Sec. 28.390. She was sentenced [183 MICHAPP 539] to serve a term of six months to five years in prison, to run consecutively to the sentence she was serving at the time of her escape. She now appeals and we reverse and vacate the conviction.

Defendant argues that the court lost jurisdiction over this matter because the prosecutor failed to exercise a good-faith effort to bring her to trial within 180 days after the issuance of the arrest warrant and her incarceration in the Genesee County jail on an unrelated charge, in violation of the so-called 180-day rule. M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). We agree. Defendant was in the custody of the Department of Corrections at a half-way facility located in the City of Detroit when she "escaped" by failing to return to the facility when required on February 9, 1987. On February 20, 1987, the 36th District Court issued a warrant for defendant's arrest on the prison escape charge. On April 18, 1987, defendant was arrested in Genesee County on an unrelated charge and was lodged in the Genesee County jail to await trial on that charge.

This Court, in People v. England, 177 Mich.App. 279, 284, 441 N.W.2d 95 (1989), held that an escaped prisoner who is being held in a county jail awaiting trial on an unrelated charge is considered to be within the custody of the Department of Corrections for purposes of the 180-day rule. Thus, defendant was in the Department of Corrections' custody from the time of her arrest. ¹ Furthermore, [183 MICHAPP 540] inasmuch as the Department of Corrections was the complainant on the prison escape charge, the department knew or should have known that a warrant was outstanding against defendant from the date of its issuance on February 20, thus triggering the running of the 180-day period from the date of defendant's subsequent arrest. ² Accordingly, [183 MICHAPP 541] we conclude that the 180-day period under the statute began running upon defendant's arrest in Genesee County. Thus, defendant was not brought to trial within 180 days of that arrest. Furthermore, since the people have not shown any just cause for the delay, we conclude that the requirements of the statute were violated in this case and, therefore, defendant is entitled to have her conviction reversed and vacated.

Finally, we wish to briefly address the people's argument that defendant's guilty plea waived appellate review of this issue. The prosecutor is correct that an unconditional guilty plea waives appellate review of a constitutional speedy trial claim. People v. Rivera, 164 Mich.App. 670, 417 N.W.2d 569 (1987). Thus, to the extent that defendant does also argue a violation of her constitutional right to speedy trial, appellate review of that argument has been waived by her unconditional guilty plea. However, defendant argued, and we decided, this matter on the basis of a violation of the 180-day rule statute and this statute is jurisdictional. Accordingly, the issue of a violation of the 180-day rule is not waived by a guilty plea since a guilty plea does not waive jurisdictional issues. Rivera, supra.

As for the view of the dissent that the issue of the violation of the 180-day rule is waived since it affects personal, rather than subject-matter, jurisdiction, we must disagree. Even assuming that our colleague in dissent is correct that this issue involves a question of personal jurisdiction, a conclusion upon which we offer no opinion, we do not believe it affects the analysis. The Supreme Court [183 MICHAPP 542] explained in People v. New, 427 Mich. 482, 495-496, 398 N.W.2d 358 (1986), what issues are waived by a guilty plea:

In summary, in addition to the Reid [People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984) ] conditional plea situation, a criminal defendant may appeal from an unconditional guilty plea or a plea of nolo contendere only where the claim on appeal implicates the very authority of the state to bring the defendant to trial, that is, where the right of the government to prosecute the defendant is challenged. Such rights are never waived by a plea of guilty or nolo contendere. Where the claim sought to be appealed involves only the capacity of the state to prove defendant's factual guilt, it is waived by a plea of guilty or nolo contendere.

Thus, the question is not, as our dissenting colleague would hold, whether defendant could waive the issue. See post, p. 724. Rather, the question is whether the issue goes to the state's authority to prosecute or to the state's ability to prove guilt. The 180-day rule involves the former issue, not the latter. Accordingly, it is not waived by a guilty plea. Simply put, the issue is not whether defendant could have waived the issue, but whether he did waive it. In the case at bar, defendant did not.

For the above reasons, we conclude that defendant's conviction should be reversed, and since the court lacks jurisdiction to try defendant, the decision is with prejudice to reinstating charges against defendant and, thus, the conviction must be vacated as well.

Defendant's conviction is reversed and vacated.

GILLIS, J., concur.

GRIFFIN, Presiding Judge (dissenting).

At the present time, [183 MICHAPP 543] there is a substantial split of authority within the Court of Appeals on the issue whether a defendant who enters an unconditional plea of guilty relinquishes his or her constitutional and statutory rights to a speedy trial. Panels of this Court in People v. Parshay, 104 Mich.App. 411, 304 N.W.2d 593 (1981), lv. den. 411 Mich. 1081 (1981), People v. Williams, 145 Mich.App. 614, 617, 378 N.W.2d 769 (1985), and People v. Rivera, 164 Mich.App. 670, 417 N.W.2d 569 (1987), have held that a guilty plea constitutes such a waiver of constitutional rights. Waiver of the statutory right to a speedy trial is less clear in these decisions.

Panels in People v. Davis, 123 Mich.App. 553, 558-559, 332 N.W.2d 606 (1983), People v. Farmer, 127 Mich.App. 472, 339 N.W.2d 218 (1983), People v. Wolak, 153 Mich.App. 60, 395 N.W.2d 240 (1986), People v. Leroy, 157 Mich.App. 334, 403 N.W.2d 555 (1987), and People v. Sickles, 162 Mich.App. 344, 350-351, 412 N.W.2d 734 (1987), have concluded that constitutional or statutory speedy trial rights are not waived or relinquished by a guilty plea.

The panels of this Court which have held that the "180-day rule" is a viable defense despite an unconditional guilty plea base their decisions on "jurisdictional" grounds. They note that the statute, M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1), provides that a violation of the speedy trial rule divests the court of "jurisdiction" and untried warrants, indictments, and informations or complaints shall "be without any further force or effect." Although never specified, it is assumed that these panels construe the term "jurisdiction" to mean subject-matter jurisdiction rather than personal jurisdiction.

Jurisdiction involves the two different concepts of subject-matter jurisdiction and personal jurisdiction. Subject-matter jurisdiction encompasses those [183 MICHAPP 544] matters upon which the court has power to act. Personal jurisdiction deals with the authority of the court to bind the parties to the action. Subject-matter jurisdiction is never waivable nor may it be stipulated to by the parties. Personal jurisdiction, however, is always waivable and defects may be corrected by stipulation.

The Supreme Court in People v. Phillips, 383 Mich. 464, 469-470, 175 N.W.2d 740 (1970), examined the distinction between subject-matter and personal jurisdiction and held that a criminal defendant may waive personal jurisdiction defenses:

The jurisdiction of the court over the subject matter is not here questioned. We are concerned only with the validity of the procedure whereby that court sought to exercise its jurisdiction over the person of the accused.

Jurisdiction over the subject matter, of course, could not be conferred by consent or waiver, but no reason appears why an accused could not subject himself to the court's personal jurisdiction. The procedural safeguards spelling out the method whereby a court obtains jurisdiction over the person of an accused are all designed for his protection. If he elects not to avail himself of the established procedural rights there appears to be none who should be heard to complain.

Later, in People v. New, 427 Mich. 482, 487-488, 398 N.W.2d 358 (1986), the Michigan Supreme Court looked to federal precedent to determine the scope of constitutional rights relinquished by a plea of guilty. After analyzing 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 the later [183 MICHAPP 545] cases of Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), the Michigan Supreme Court cited with approval the following passage from Menna, at pp. 62-63, n. 2, 96 S.Ct. at p. 242, n. 2:

Neither Tollett v. Henderson, 411 U.S. 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, ...