People v. Rivera , 164 Mich. App. 670 ( 1987 )

164 Mich. App. 670 (1987) 417 N.W.2d 569

PEOPLE
v.
RIVERA

Docket No. 94630.

Michigan Court of Appeals.

Decided December 7, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people.

Hortin, Rogow & Moors (by Thomas O. Moors), for defendant on appeal.

Before: M.J. KELLY, P.J., and CYNAR and DOCTOROFF, JJ.

M.J. KELLY, P.J.

On February 1, 1985, pursuant to a plea agreement, defendant pled nolo contendere to one count of manslaughter, MCL 750.321; MSA 28.553, and one count of larceny in a building, MCL 750.360; MSA 28.592. His appeal from the manslaughter conviction has already been affirmed by another panel of this Court. People v Rivera, unpublished opinion per curiam of the Court of Appeals, decided July 18, 1986 (Docket No. 82113). Now, defendant appeals his conviction on the larceny charge. We affirm.

In exchange for defendant's plea, numerous charges including armed robbery, first-degree murder and a supplemental information were subsequently dismissed. Defendant's sole argument here is that he was denied his constitutional right to a speedy trial. Defendant raised an identical issue in the previous appeal from his manslaughter conviction. In that instance this Court rejected defendant's claim on the basis that defendant's nolo contendere plea waived all nonjurisdictional defects. The Court concluded that the claimed denial of the right to a speedy trial was a nonjurisdictional defect and defendant's argument was waived by his plea.

There has been a split on this Court over whether a right to raise on appeal a claim of a denial of the right to a speedy trial survives a guilty plea or a plea of nolo contendere. For authority for the proposition that a speedy trial claim is waived by a plea, see People v Parshay, 104 Mich. App. 411; 304 NW2d 593 (1981), lv den 411 Mich. 1081 (1981), and People v Williams, 145 Mich. App. 614; 378 NW2d 769 (1985). For the contrary position, that a speedy trial claim survives a plea, see People v Davis, 123 Mich. App. 553; 332 NW2d 606 (1983), and People v Farmer, 127 Mich. App. 472; 339 NW2d 218 (1983).

The most recent case to decide this issue sided with those cases that have held that a speedy trial issue survives a guilty plea. See People v Sickles, 162 Mich. App. 344; 412 NW2d 734 (1987). However, Sickles based its conclusion not on the reasoning of the prior line of cases, but on the basis that People v New, 427 Mich. 482; 398 NW2d 358 (1986), resolved the split.

The operant language taken from People v New is as follows:

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...." [People v White, 411 Mich. 366, 398; 308 NW2d 128 (1981)] (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. [Id. at 491.]

From this language, Sickles concludes that, despite the fact that People v New did not involve a speedy trial defense, the rationale in People v New leads to the result that a plea of nolo contendere will not waive a speedy trial issue, because "[s]peedy trial issues do not relate to the state's capacity to prove a defendant's factual guilt but instead go more to the state's right to ultimately bring a defendant to trial." People v Sickles, supra at 351-351.

We are unable to agree that People v New has resolved this issue. The decision in People v New can only be characterized as more restrictive upon a defendant's rights subsequent to the acceptance of a plea of guilty or nolo contendere. People v New expressly rejected the more expansive language of People v Alvin Johnson, 396 Mich. 424; 240 NW2d 729 (1976), cert den 429 U.S. 951; 97 S. Ct. 370; 50 L. Ed. 2d 319 (1976). The portion of Johnson rejected by New as a misreading of federal authority and as unnecessary dictum provided that a guilty plea did not waive those rights "relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed...." Id. at 444.

If panels of this Court could conclude that a guilty plea or plea of nolo contendere operated as a waiver of a due process claim based on a denial of the right to a speedy trial despite the holding in People v Alvin Johnson, such reasoning must still survive the holding in People v New in light of its broader application of waiver in guilty plea cases.

Consequently, we conclude, consistent with People v Parshay, supra, People v Williams, supra, United States v Freed, 688 F2d 24 (CA 6, 1982), and United States v Lee, 500 F2d 586 (CA 8, 1974), cert den 419 U.S. 1003; 95 S. Ct. 322; 42 L. Ed. 2d 279 (1974), that a speedy trial claim is nonjurisdictional and thus waived by a defendant's plea of guilty or nolo contendere.

Affirmed.