People v. Mays , 77 Mich. App. 389 ( 1977 )

77 Mich. App. 389 (1977) 258 N.W.2d 87

PEOPLE
v.
MAYS

Docket No. 29511.

Michigan Court of Appeals.

Decided August 9, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Acting Director, Prosecutor's Repeat Offender's Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

Alvin C. Sallen, for defendant on appeal.

Before: BEASLEY, P.J., and V.J. BRENNAN and J.R. McDONALD,^[*] JJ.

PER CURIAM.

Defendant Jackie Marcus Mays was arraigned on June 2, 1976, pursuant to a supplemental information charging him as an habitual criminal offender, contrary to MCLA 769.12; MSA 28.1084. The charge under the habitual offender statute was based on prior guilty plea convictions for attempted unlawful driving away an automobile, contrary to MCLA 750.92; MSA 28.287, MCLA 750.413; MSA 28.645; gross indecency, contrary to MCLA 750.338b; MSA 28.570(2); and first-degree criminal sexual conduct, contrary to MCLA 750.520b; MSA 28.788(2). Defendant pled guilty to the supplemental information and was sentenced to a term of imprisonment of 10 to 15 years. Defendant appeals as of right under GCR 1963, 806.1.

Defendant asserts that the underlying prior guilty plea convictions are unconstitutionally infirm and, thus, the habitual criminal charge must be vacated. We find no merit to defendant's claim.

Regarding defendant's ability to attack what he alleges as unconstitutionally infirm prior guilty plea convictions, we have recently denied review of such claims underlying conviction as an habitual offender when those complained of prior convictions had never been appealed in their own right and were first subject to collateral attack on the present appeal. People v Hendrick, 52 Mich. App. 201, 207; 217 NW2d 112 (1974), affirmed 398 Mich. 410; 247 NW2d 840 (1976). Further, not only is defendant precluded from review on the basis of improper collateral attack of his prior convictions, he also lacks legal basis to appeal, even had he properly appealed these prior convictions, simply because he has failed to present any allegation of unconstitutionality in the trial court. We will not review such claims on appeal before the trial court has had the chance to rule on them below. People v Covington, 70 Mich. App. 188, 195; 245 NW2d 558 (1976). See also People v Henry, 395 Mich. 367, 376; 236 NW2d 489 (1975).

Moreover, to the extent defendant has presented the record in his prior guilty plea conviction for attempted unlawful driving away an automobile, we find no constitutional or reversible error in those proceedings. See People v Mauch, 397 Mich. 646, 653-659; 247 NW2d 5 (1976).

Having reviewed defendant's allegation of error and finding none with merit, we affirm the trial court.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.