People v. Vonins
Decision Date | 29 December 1993 |
Docket Number | Docket No. 142782 |
Citation | 511 N.W.2d 706,203 Mich.App. 173 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph James VONINS, Defendant-Appellant. (After Remand) |
Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Ronald J. Frantz, Pros. Atty., and Gregory J. Babbitt, Asst. Pros. Atty., for the People.
State Appellate Defender by Anne Yantus, for defendant-appellant on appeal.
Before BRENNAN, P.J., and REILLY and DANHOF, * JJ.
AFTER REMAND
Defendant appeals as of right his conviction of possession with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv), and his sentence of five to twenty years of imprisonment. 1 We affirm.
Defendant's conviction was the result of an unconditional guilty plea entered pursuant to an agreement whereby an enhancement count under M.C.L. § 333.7413; M.S.A. § 14.15(7413), based on defendant's earlier conviction of possession of drugs, was dismissed. Defendant's appeal does not rest upon a claim that he was denied effective assistance of counsel at his plea hearing or that his plea was not accurate, or was made involuntarily or without understanding. See In re Oakland Co. Prosecutor, 191 Mich.App. 113, 477 N.W.2d 455 (1991). Rather, defendant claims that his conviction should be set aside because his trial counsel was ineffective when he failed to pursue an interlocutory appeal from an order denying his motion to quash, or to obtain an agreement for entry of a guilty plea conditioned on preservation of the suppression issue. That argument is without merit.
Issues that relate solely to the state's capacity to prove factual guilt are waived by an unconditional guilty plea. People v. New, 427 Mich. 482, 493-494, 398 N.W.2d 358 (1986). Therefore, a claim that the trial court erred in failing to suppress evidence is waived. Id. Defendant may not now circumvent his accurate, voluntary, and understanding unconditional guilty plea, which necessarily involves a waiver of such an error, by claiming that defense counsel was ineffective because he failed to appeal the trial court's denial of defendant's motion to suppress or to preserve the issue by obtaining a conditional plea. Where the alleged deficient actions of defense counsel relate to issues that are waived by a valid unconditional guilty plea, the claim of ineffective assistance of counsel relating to those actions is also waived. People v. Nunn, 173 Mich.App. 56, 58, 433 N.W.2d 331 (1988). 2
Defendant also contends that the trial court impermissibly assessed points under two Prior Record Variables that overlap, thereby unfairly scoring twice for the same prior conviction. We disagree. The trial court assessed ten points under Prior Record Variable (PRV) 2 for one prior low severity felony conviction of possession with intent to deliver cocaine. Defendant was also assessed points under PRV 6 on the basis of his postconviction relationship to the justice system. Because defendant was on parole status, arising from the earlier conviction, at the time of the present offense, he was assessed fifteen points. Contrary to the dicta in People v. Williams, 147 Mich.App. 1, 5, 382 N.W.2d 191 (1985), (decided while the first edition of the sentencing guidelines was in effect) we conclude that the scoring of points under both PRV 2 and 6 in the second edition of the guidelines is not impermissible "double counting."
PRV 2 and PRV 6 are presented in the guidelines as two separate categories addressing two different situations. PRV 2 provides for the assessment of points for every prior low severity felony conviction, with an increase in the number of points in correlation to the number of such convictions. PRV 6 provides for the assessment of points if, at the time of the instant offense, the defendant had a relationship with the criminal justice system involving bail, bond, pretrial diversion, or the Holmes Youthful Trainee Act. Additional points are to be assessed under PRV 6 when there is a "post-conviction relationship," such as being on probation or parole when the instant offense was committed, or when the instant offense occurred within six months of termination of probation or...
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