People v. Plato

318 N.W.2d 486, 114 Mich. App. 126
CourtMichigan Court of Appeals
DecidedDecember 18, 1981
DocketDocket 53714
StatusPublished
Cited by3 cases

This text of 318 N.W.2d 486 (People v. Plato) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Plato, 318 N.W.2d 486, 114 Mich. App. 126 (Mich. Ct. App. 1981).

Opinions

Per Curiam.

Defendant was charged in district court with the misdemeanor offense of possession of the controlled substance lysurgic acid diethylamide (LSD), and with the felony offense of possession of phencyclidine (PCP). Following a preliminary examination, the district court retained jurisdiction of the misdemeanor offense and bound defendant over to circuit court on the PCP charge. October 1, 1979, pursuant to a plea bargain, defendant pled guilty in district court to the LSD charge and was sentenced by the district court to three days in jail and one year probation.

November 6, 1979, defendant moved to dismiss the felony information in circuit court on grounds that his guilty plea to possession of LSD in district court barred trial in circuit court on grounds of double jeopardy. Following a hearing and argument, the motion was denied. Trial by jury was held April 28, 1980, and defendant was found guilty. At the trial, the court admitted portions of the transcript of defendant’s plea in the district court. Defendant did not take the stand and rested without offering proofs. August 12, 1980, defendant was sentenced to six months in jail, three years probation, and court costs of $750. He appeals of right raising three issues.

Both controlled substances were discovered June 14, 1970, when police officers executed a search [130]*130warrant at defendant’s home. In the bedroom they found a cigarette lighter case containing two small papers. Wrapped in one of the papers was a substance later identified as less than one-tenth of a gram of phencyclidine (PCP). The other paper had upon it a microdot of a substance later determined to be lysergice acid diethylamide (LSD). Certain other drug paraphernalia were also confiscated.

I

Defendant first claims that he was denied effective assistance of counsel in that he was incorrectly advised by his attorney that if he agreed to plead guilty to the district court charge he would not be prosecuted on the pending circuit court charge.

In Michigan, the merit of a claim of ineffective assistance of counsel is determined by applying a bifurcated standard. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). The first prong of the test focuses on the Sixth Amendment right to counsel, for which the Supreme Court has adopted the standard established in Beasley v United States, 391 F2d 687 (CA 6, 1974). Garcia, supra, 264. To satisfy defendant’s right to counsel, his lawyer "must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations”. Garcia, supra, 264.

The second prong, which was developed from People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969), examines whether particular mistakes of defense counsel jeopardized defendant’s right to a fair trial. Under this prong of the [131]*131test, a court should not grant a new trial unless it finds that, but for the mistake, defendant would have had a reasonably likely chance of acquittal. Garcia, supra, 266.

In the present case, defendant relies on the second prong of the Garcia standard, claiming that his counsel made a serious mistake, not during trial, but in the failure to warn defendant prior to the guilty plea that the circuit court charge would be pursued and that the guilty plea transcript could be used as evidence against him in the subsequent trial. In support of this claim, defendant submitted an affidavit in which he states that he tendered the plea in reliance on assurances from his counsel that "everything would be taken care of by his plea”, that "it would never come up again”, and that "his plea could not and would not be used against him”.

We do not believe that defendant has proven his claim of ineffective assistance of counsel. A convicted person who attacks the adequacy of the representation he received at trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971), lv den 386 Mich 768 (1971), People v Means (On Remand), 97 Mich App 641, 645; 296 NW2d 14 (1980).

The circumstances surrounding the guilty plea [132]*132and the advice or lack of advice given by defense counsel were not explored at trial or at a motion for new trial. Notwithstanding defendant’s affidavit, the record does not establish that defendant tendered the plea in reliance on his belief that the pending charges would be dismissed and that the admissions he made would not be used against him. Defendant acknowledged during the plea that he was not threatened or coerced into pleading guilty and that no one had promised him anything in exchange for pleading guilty other than the sentence recommendation which was placed on the record. Further, defense counsel’s statements during argument on the motion to quash indicate that he and the defendant understood at the time of the plea that plaintiff would pursue the pending charge. We hold that the record does not establish defendant’s claim of ineffective assistance of counsel.

II

Defendant next asserts that prosecution of the PCP charge following his plea of guilty to the LSD charge violated the rule against double jeopardy. Following the guilty plea, defendant filed a motion to quash the circuit court information based on double jeopardy, which was denied by the trial court. The essence of defendant’s argument at trial and on appeal is that possession of the two controlled substances was a single criminal activity, involving a single criminal goal or intent and that, under the single transaction test announced in People v White, 390 Mich 245; 212 NW2d 222 (1973), defendant was placed in jeopardy by the guilty plea conviction and could not be subsequently tried for possession of PCP. We disagree.

[133]*133White held that, in order to satisfy the constraints of double jeopardy, the prosecutor must, except in limited circumstances, join at one trial all charges arising out of a single criminal act, occurrence, or transaction. Therefore, although the rape and kidnapping were separate offenses, it was uncontested that they occurred in the same criminal occurrence, and thus defendant was entitled to be tried on both charges in a single trial. But in the instant case, the only element of sameness is that the two drugs were found at the same time and in the same container. Unlike the situation in White, there is no evidence in the instant case that defendant acquired possession of the two drugs at the same time and in a single transaction. The offenses of possession of LSD and possession of PCP do not involve a criminal activity with a single intent or goal. They are separate offenses involving separate intent elements and the violation of separate statutory sections allowing for the imposition of different maximum penalties. They are clearly not the "same offense” for which multiple convictions would be prohibited under People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980).

Assuming, arguendo,

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Related

People v. Seals
776 N.W.2d 314 (Michigan Court of Appeals, 2009)
People v. Fowlkes
345 N.W.2d 629 (Michigan Court of Appeals, 1983)
People v. Plato
318 N.W.2d 486 (Michigan Court of Appeals, 1981)

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Bluebook (online)
318 N.W.2d 486, 114 Mich. App. 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-plato-michctapp-1981.