People v. Sundling

• Decision Date: 05 November 1986
• Docket Number: Docket No. 83856
• Citation: 153 Mich.App. 277,395 N.W.2d 308
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred Leonard SUNDLING, Defendant-Appellant. 153 Mich.App. 277, 395 N.W.2d 308
• Court: Court of Appeal of Michigan — District of US

Page 308

395 N.W.2d 308

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred Leonard SUNDLING, Defendant-Appellant.

Docket No. 83856.

153 Mich.App. 277, 395 N.W.2d 308

Court of Appeals of Michigan.

Submitted Sept. 6, 1985.

Decided July 8, 1986.

Released for Publication Nov. 5, 1986.

[153 MICHAPP 279] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Steven L. Pence, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

State Appellate Defender by Stuart B. Lev, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and WAHLS and HOOD, JJ.

HOOD, Judge.

Defendant was charged with one count of third-degree criminal sexual conduct, involving Joe Brown, M.C.L. Sec. 750.520d(1)(a); M.S.A. Sec. 28.788(4)(1)(a); one count of second-degree criminal sexual conduct, involving Greg Callison, M.C.L. Sec. 750.520c(1)(b); M.S.A. Sec. 28.788(3)(1)(b); and one count [153 MICHAPP 280] of being a sexually delinquent person, M.C.L. Sec. 750.10a; M.S.A. Sec. 28.200(1). In a supplemental information, defendant was charged as an habitual offender, third offense, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. Defendant pled nolo contendere to the count of third-degree criminal sexual conduct involving Joe Brown in exchange for the dismissal of the other charges and now appeals as of right.

I

Prior to agreeing to the plea bargain, defendant moved to suppress evidence seized pursuant to a search warrant and the motion was denied. Approximately one-half hour after defendant's motion to suppress was denied, the plea bargain was struck and defendant's plea and the factual basis for it were placed on the record.

On appeal, defendant claims that the trial court clearly erred in finding admissible evidence seized pursuant to the search warrant. Before we reach the merits of this issue we must first determine whether the issue has been waived by virtue of defendant's nolo contendere plea.

In People v. Alvin Johnson, 396 Mich. 424, 444, 240 N.W.2d 729 (1976), cert. den. 429 U.S. 952, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976), our Supreme Court held that certain pretrial rulings, including the sort at issue here, are subject to review despite a plea of guilty:

"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 [153 MICHAPP 281] 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 omitted, emphasis added.)

The doctrine espoused in Alvin Johnson was followed by the Court in People v. White, 411 Mich. 366, 387, 308 N.W.2d 128 (1981), in its decision that a claim of entrapment is not waived by a plea of guilty. More recently, the language of Alvin Johnson was quoted approvingly in People v. Reid, 420 Mich. 326, 333, 362 N.W.2d 655 (1984), where the Supreme Court approved and adopted the notion of a conditional plea which can expressly preserve for appellate review a defendant's claim that a constitutional right against unreasonable search and seizure was violated where the defendant, the prosecutor and the judge agree to the conditional plea.

Despite the language in Alvin Johnson this Court has continued to hold that 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)". People v. Riley, 88 Mich.App. 727, 730, 279 N.W.2d 303 (1979). See also People v. Hill, 86 Mich.App. 706, 273 N.W.2d 532 (1978); People v. Jones, 111 Mich.App. 465, 314 N.W.2d 654 (1981). The panels reaching this conclusion have declared that the language in Alvin Johnson is dictum and that [153 MICHAPP 282] the competing interests involved in the plea-waiver rule require that the dictum not be followed. People v. Riley, supra, 88 Mich.App. p. 731, 279 N.W.2d 303.

We need not question the wisdom of those decisions to dispose of the present case, however, for we find that this case stands somewhere on middle ground between the complete waiver of all nonjurisdictional defects adhered to by this Court and the conditional plea adopted by the Supreme Court. People v. Reid, supra.

A plea of guilty should be "entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence, or ignorance". People v. Coates, 337 Mich. 56, 74, 59 N.W.2d 83 (1953), quoting People v. Merhige, 212 Mich. 601, 612, 180 N.W. 418 (1920). The court rule dealing with guilty pleas provides that the trial court, prior to accepting defendant's plea, shall inform the defendant that his plea of guilty waives the rights he would have at trial. GCR 1963, 785.7(1)(c), now MCR 6.101(F)(1)(c). The rule does not mandate that the court advise a defendant that his guilty plea will waive appellate review of prior pretrial rulings by the trial court.

In the case at bar, the trial court did not advise defendant that his plea of nolo contendere would waive his right to seek review of the pretrial motion to suppress. On the contrary, it is clear from the trial court's own words that it "understood" defendant would appeal the motion to suppress after making his plea. Given that this Court has steadfastly maintained that a guilty plea waives such defects, the trial court's words in this case amounted to a misstatement of law.

This Court has found implicit, in connection with a trial court's duty pursuant to GCR 1963, 785.3 to apprise a defendant of the sentencing [153 MICHAPP 283] consequences of a plea, that a defendant must not be allowed to suffer misfortune because of reliance upon the plea-taking court's misstatement of the law. People v. Gray, 125 Mich.App. 482, 484-485, 336 N.W.2d 491 (1983); People v. Mitchell, 412 Mich. 853, 312 N.W.2d 152 (1981); People v. Maurice Jones, 37 Mich.App. 283, 285, 194 N.W.2d 534 (1971). We believe such a policy should also prevail here where the trial court's misstatement leads a defendant to believe that his right to appeal a motion to suppress evidence remains intact.

That the present defendant retained such a belief is clear from his statement during allocution:

"I sincerely believe that my rights were violated with regard to the search warrant, but I also respect the Court's decision and especially the time and effort put forth in making its decision with regard to this issue."

* * *

"Please be aware that I want to appeal and at that time, I will request a court-appointed attorney to be retained by the State to represent me in such an appeal."

Moreover, because the fruits of the search led to the discovery of the complainant upon whose testimony the charges against defendant are based, we find that preservation of his right to appeal the search and seizure issue was an important if not critical factor in inducing defendant to plead nolo contendere. Compare People v. Ferrigan, 103 Mich.App. 214, 217-219, 302 N.W.2d 855 (1981), lv. den. 413 Mich. 861, 302 N.W.2d 855 (1982).

We conclude that defendant's plea was entered into upon the belief, based upon a statement of the trial court, which was unobjected to by the people, that defendant's right to appeal the motion to [153 MICHAPP 284] suppress was preserved. In the interest of judicial integrity, we are inclined to honor that belief and review the merits of defendant's claim.

II

At the hearing on the motion to suppress, the prosecutor called Sergeant Robert Dietrich of the Saline Police Department, who sought the warrant, executed the search, and seized the evidence which gave rise to the charges resulting in the present plea. Dietrich testified that his decision to seek the warrant stemmed from Evan Lampe's complaint of an alleged sexual assault committed upon him by defendant approximately three months prior to the issuance of the warrant.

In addition to the incident involving Evan Lampe, Dietrich knew of two other incidents which had resulted in convictions involving criminal sexual conduct perpetrated by the defendant on male minors. One occurred in 1969, the other occurred in 1977. In the search warrant, Dietrich described the circumstances surrounding defendant's prior convictions as evidence of a modus operandi and set forth the details of Evan Lampe's assault.

In the search, Dietrich seized, among other things, various pornographic material, a black recliner rocker, video equipment and video cassettes depicting the defendant in sexual relations with male minors, and envelopes containing letters. While the envelopes were not named in the affidavit, the officer testified that he seized them because they were in plain view. From the return addresses on the envelopes, Dietrich was able to retrieve the names of other possible victims in the Gladstone/Escanaba area. Dietrich relayed these names and information concerning the evidence [153 MICHAPP 285] seized in the search to Sergeant Robert Farrell in Escanaba. Farrell proceeded to investigate and discovered the complainants whose allegations gave rise to the present charges against defendant. Prior to his contact with Dietrich, Farrell knew of no criminal activity involving defendant...