People v. New

398 N.W.2d 358, 427 Mich. 482

• Court: Michigan Supreme Court
• Decided: December 30, 1986
• Docket: Docket Nos. 74938, 76730, (Calendar Nos. 3, 4)
• Status: Published

Opinions

Cavanagh, J.

These consolidated cases call upon us to decide whether a criminal defendant, after pleading guilty or nolo contendere, may raise as error on appeal the denial of a motion to suppress evidence or the denial of a motion to quash the information because of insufficient evidence at the preliminary examination. We hold that by pleading guilty or nolo contendere defendants have waived their right to raise these issues on appeal. Since this issue is dispositive of both cases, we do not reach defendants’ claims that their pretrial motions were erroneously decided.

i

Defendant Roy New was originally charged with first-degree felony murder¹ and unarmed robbery.² Prior to trial, New filed several motions, including a motion to quash the information, asserting that insufficient evidence was presented at the preliminary examination. He also filed a motion to suppress the use of statements he had given to the police after his arrest. Both motions were denied by the trial court. Pursuant to plea negotiations, New subsequently pled nolo contendere to an added charge of second-degree murder³ and was sentenced to serve a prison term of thirty to fifty years.

New appealed his plea-based conviction to the Court of Appeals. The Court of Appeals panel refused to reach the merits of New’s appeal, holding that he waived his right to appeal the trial court’s decision on his pretrial motions by pleading nolo contendere.

Defendant Jesus Perez was charged with possession with intent to deliver less than fifty grams of heroin,⁴ possession of less than fifty grams of cocaine,⁵ and as an habitual offender, third offense.⁶ Perez filed a motion to suppress evidence of the narcotics seized from the hotel room he was occupying at the time of his arrest. The trial court denied Perez’ motion to suppress this evidence. Subsequently, Perez, pursuant to a plea agreement, pled guilty to the charge of attempted possession with intent to deliver less than fifty grams of heroin⁷ and to the habitual offender, third offense charge. Perez was sentenced to serve a prison term of from five to ten years.

Perez appealed to the Court of Appeals, which affirmed his plea-based convictions upon the grounds that Perez waived his right to appeal the denial of his suppression motion by pleading guilty. See People v Perez, 143 Mich App 718; 373 NW2d 202 (1985)._

II

A

In the guilty-plea trilogy of Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), and Parker v North Carolina, 397 US 790; 90 S Ct 1458; 25 L Ed 2d 785 (1970), and in Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973), the Supreme Court recognized that one effect of a guilty plea is to preclude a defendant from challenging constitutional violations alleged to have occurred before the plea. As the Court stated in Tollett:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. [411 US 267.]

In Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975), the Court explained its holdings in the Brady trilogy and in Tollett as follows:

Neither Tollett v Henderson, 411 US 258 (1973), nor our earlier cases on which it relied, e.g., Brady v United States, 397 US 742 (1970), and McMann v Richardson, 397 US 759 (1970), stand for the proposition that counseled guilty pleas inevitably "waive” all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 US 266. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar the claim. [423 US 62-63, n 2. Emphasis changed.]

Thus, the United States Supreme Court has determined that where a defendant’s claim is one that would preclude the state from ever prosecuting the defendant for the crime regardless of his factual guilt, a guilty plea does not waive the defendant’s right to subsequently raise that claim.⁸

B

This Court has held, as a general rule, that a plea of guilty "waives all nonjurisdictional defects in the proceedings.” People v Alvin Johnson, 396 Mich 424, 440; 240 NW2d 729 (1976), cert den sub nom Michigan v Johnson, 429 US 951; 97 S Ct 370; 50 L Ed 2d 319 (1976), citing People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973). In Alvin Johnson, we addressed the effect of a plea of guilty on the constitutional defense of double jeopardy. Therein, we limited the broad scope of the plea-waiver rule, holding that a guilty plea does not waive defendant’s right to appeal from an adverse decision on his double jeopardy defense. 396 Mich 444-445. We set forth the following test to be used to distinguish between those rights or defenses which are waived by a plea of guilty and those rights or defenses which may be asserted 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 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. [396 Mich 444. Emphasis added.]

The above-emphasized statement in Alvin Johnson was not only a misreading of the previously cited federal authority, it also was not necessary to the decision of that case, as defendant did not present any such claims. Hence, the statement that the defense of the failure to suppress illegally obtained evidence and the defense of insufficient evidence to bind over at the preliminary examination are examples of claims which survive a guilty plea is obiter dictum.⁹

We next addressed the effect of a guilty plea on an appeal in the case of People v White, 411 Mich 366; 308 NW2d 128 (1981). In White, this Court unanimously held, in separate opinions, that the defense of entrapment was not waived by a plea of guilty. 411 Mich 386-387, 399. The majority opinion stated that the defense of entrapment "does not involve an assessment of guilt or innocence, but rather expresses a policy that there should be no prosecution at all.” 411 Mich 387. Entrapment was determined to be "like a jurisdictional defect.” Id.

Similarly, the well-reasoned separate opinion noted that if successful, the entrapment defense provides " 'a complete defense to a criminal prosecution’ and undercuts 'the state’s interest in punishing the defendant’ and 'authority or ability to proceed with the trial.’ ” 411 Mich 393 (Moody, J., concurring in part and dissenting in part), quoting Alvin Johnson, 396 Mich 444.

Recently, this Court discussed the related issue of the validity of a conditional plea of guilty in the case of People v Reid, 420 Mich 326; 362 NW2d 655 (1984). The defendants in Reid pled guilty, but reserved their right to appeal a denial of their motions to suppress evidence obtained pursuant to a search warrant. We held that a defendant may appeal from a denial of a Fourth Amendment or a Const 1963, art 1, § 11 search and seizure claim where "the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was violated is sustained and the defendant, the prosecutor, and the judge have agreed to the conditional plea.” 420 Mich 331-332.

Reid did not modify the essential holding of Alvin Johnson, but rather provided a procedure (conditional guilty plea) in which a defendant may admit to a criminal act but challenge the state’s ability to present its case against him because of an alleged illegal search and seizure. See Reid, 420 Mich 334-335.

Today, we hold that a defendant, after pleading guilty, may raise on appeal only those defenses and rights which would preclude the state from obtaining a valid conviction against the defendant. Such rights and defenses "reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial . . . .” White, 411 Mich 398 (Moody, J., concurring in part and dissenting in part). In such cases, the state has no legitimate interest in securing a conviction. On the other hand, where the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual guilt, it is subsumed by defendant’s guilty plea.

The rationale for this holding was aptly summarized by Justice Moody:

A literal interpretation of the language of Menna and Blackledge [v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974)] might allow a defendant to preserve a wide variety of defenses in spite of his guilty plea. However, the spirit of those cases, and respect for the state’s interest in the finality of conviction and judicial economy as reflected in the guilty-plea procedure, undercuts the wisdom of such a construction. Further, the underlying rationale of the guilty plea in many cases is the notion of bargain and exchange. When a defendant pleads guilty he gives up a series of important rights, including the right to a jury trial, the right to confront accusers and present witnesses, and the right to remain silent. In exchange, he may be convicted of a lesser crime or receive a shorter sentence. Courts should be hesitant to allow a defendant to upset a bargain by which he knowingly and intelligently admitted his guilt.

In light of these functions of the guilty plea in the criminal justice system, the distinction implicit in Menna and Blackledge and that underlying the "complete defense” language of Alvin Johnson would insulate only a narrow class of rights against a waiver by plea. Only those rights and defenses which reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial are preserved. Examples include: the prohibition against double jeopardy, Menna; the right to challenge the constitutionality of the statute under which one is charged, Journigan v Duffy, 552 F2d 283 (CA 9, 1977); the challenge that a charge is brought under an inapplicable statute, People v Beckner, 92 Mich App 166; 285 NW2d 52 (1979). These defenses are "similar to the jurisdictional defenses,” Alvin Johnson, 444, in that they involve the right of the government to prosecute the defendant in the first place. Such rights may never be waived.

In contrast, those rights which are subsumed in a guilty plea relate to a different aspect of governmental conduct in the criminal process. When a defendant pleads guilty, he waives his right to a trial. Therefore, he necessarily gives up all the rights and challenges associated with that trial. Thus, important safeguards relating to the capacity of the state to prove defendant’s factual guilt, and those regulating the prosecution’s conduct at trial are among those defendant waives when he pleads guilty. These rights, which essentially relate to the gathering and presentation of evidence, are lost even if a successful challenge would provide a "complete defense” by in effect rendering the state unable to continue with the prosecution. [411 Mich 397-399.]

Ill

Defendant New contends that a plea of nolo contendere is materially distinctive from a guilty plea and should be considered a functional equivalent of the conditional plea permitted in Reid. We disagree.

Since a plea of nolo contendere indicates that a defendant does not wish to contest his factual guilt,¹⁰ any claims or defenses which relate to the issue of factual guilt are waived by such a plea. Claims or defenses that challenge a state’s capacity or ability to prove defendant’s factual guilt become irrelevant upon, and are subsumed by, a plea of nolo contendere. Hence, we hold that a plea of nolo contendere has the same effect upon a defendant’s ability to raise an issue on appeal as does a plea of guilty. Only those defenses which challenge the very authority of the state to prosecute a defendant may be raised on appeal after entry of a plea of nolo contendere.¹¹

IV

Under the test advanced above, defendant New’s claim that the trial court erred in failing to suppress his statements given to the police and defendant Perez’ claim that the trial court erred in denying his motion to suppress the evidence of the narcotics are waived by their respective nolo contendere and guilty pleas. Both defenses relate solely to the gathering and the preservation of evidence and, hence, challenge only the state’s ability to prove their factual guilt. Defendants’ claims do not challenge the authority of the state to prosecute the defendants.

Defendants’ convictions do not rest upon the allegedly illegally seized narcotics or the involuntary statements, but rather upon their admission in open court to the charged offenses. See Alvin Johnson, 396 Mich 440-441. By pleading to the charges as they have, defendants have made the issue of their factual guilt irrelevant. Their voluntary and intelligent pleas¹² have conclusively resolved the issue of their factual guilt in favor of the state. Therefore, the state does not have to bear the burden of producing sufficient evidence to prove defendants’ guilt beyond a reasonable doubt.¹³

Defendant New’s claim that his conviction ought to be reversed because insufficient evidence of the corpus delicti of the crime was presented at the preliminary examination is, likewise, waived by his plea of nolo contendere._

An examining magistrate’s decision to bind defendant over for trial is reviewable by a circuit court judge. If, the circuit court judge finds the evidence insufficient to show the commission of the crime or defendant’s participation in it, he may either dismiss the charges or remand the cause to the examining magistrate for further examination. See Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 119-120; 215 NW2d 145 (1974). The bind-over procedure is structured so as to allow the prosecutor, upon remand by the circuit court, to attempt to remedy any insufficiency in the proof in order to establish the requisite probable cause.¹⁴ Since the prosecutor may, upon remand, present sufficient evidence to bind defendant over and to proceed to trial, it follows that any error in binding defendant over relates solely to the factual evidence of defendant’s participation in the criminal act. Such an error implicates only the capacity of the state to prove defendant’s guilt and does not implicate the authority of the state to prosecute the defendant. Therefore, defendant New’s challenge to the sufficiency of the evidence presented at the preliminary examination does not survive his plea of nolo contendere.

v

In summary, in addition to the Reid 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. The defendants’ convictions are affirmed.

Williams, C.J., and Brickley, Boyle, Riley, and Archer, JJ., concurred with Cavanagh, J.

1 MCL 750.316; MSA 28.548.

2 MCL 750.530; MSA 28.798.

3 MCL 750.317; MSA 28.549.

4 MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv).

5 MCL 333.7403(1), (2)(a)(iv); MSA 14.15(7403)(1), (2)(a)(iv).

6 MCL 769.11; MSA 28.1083 and MCL 769.13; MSA 28.1085.

7 MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv) and MCL 750.92; MSA 28.287.

8 For a thorough analysis of the federal authority on this issue, see the separate opinion in People v White, 411 Mich 366, 394-399; 308 NW2d 128 (1981) (Moody, J., concurring in part and dissenting in part).

9 Several panels of the Court of Appeals have refused to follow the Alvin Johnson dicta. See, e.g., People v Blackburne, 150 Mich App 156, 159-160; 387 NW2d 850 (1986), lv den 425 Mich 869 (1986), People v Eubank, 121 Mich App 227, 230; 328 NW2d 408 (1982), People v Kline, 113 Mich App 733; 318 NW2d 510 (1982), and People v Ferrigan, 103 Mich App 214; 302 NW2d 855 (1981), lv den 413 Mich 861 (1982).

10 Literally, nolo contendere means " T do not wish to contend.’ ” 21 Am Jur 2d, Criminal Law, § 492, p 813 (citations omitted). The plea indicates a defendant’s desire not to contest the issue of his factual guilt. It is an admission of all the essential elements of the charged offense, 1 Wright, Federal Practice & Procedure, § 177, p 384; Lott v United States, 367 US 421, 426; 81 S Ct 1563; 6 L Ed 2d 940 (1961), and is tantamount to an admission of guilt for purposes of the case. Wright, supra; 21 Am Jur 2d, § 497, p 822; Hudson v United States, 272 US 451, 455; 47 S Ct 127; 71 L Ed 347 (1926).

11 Other courts have so held: United Brotherhood of Carpenters & Joiners of America v United States, 330 US 395, 412, n 26; 67 S Ct 775; 91 L Ed 973 (1947); United States v Freed, 688 F2d 24, 25 (CA 6, 1982); State v Tripp, 236 NC 320, 321; 72 SE2d 660 (1952); Ellsworth v State, 258 Wis 636, 639-640; 46 NW2d 746 (1951); Hoover v State, 568 P2d 404, 405 (Alas, 1977); State v Canaday, 116 Ariz 296; 569 P2d 238 (1977).

12 Defendants do not contest the validity of their pleas.

13 See White, 411 Mich 394 (Moody, J., concurring in part and dissenting in part), citing Shwartz, Note: The guilty plea as a waiver of "present but unknowable” constitutional rights: The aftermath of the Brady trilogy, 74 Colum L R 1435 (1974).

14 People v Miklovich, 375 Mich 536, 539; 134 NW2d 720 (1965); People v Salazar, 124 Mich App 249, 251-252; 333 NW2d 567 (1983).