People v. Wickham , 41 Mich. App. 358 ( 1972 )

41 Mich. App. 358 (1972) 200 N.W.2d 339

PEOPLE
v.
WICKHAM.

Docket No. 7278.

Michigan Court of Appeals.

Decided June 26, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston, III, Chief Appellate Attorney, for the people.

Arthur J. Tarnow, State Appellate Defender, and Larry R. Farmer, Assistant Defender, for defendant.

Before: McGREGOR, P.J., and LEVIN and TARGONSKI,^[*] JJ.

LEVIN, J.

The defendant, Jerry Michael Wickham, appeals his conviction of armed robbery.

Wickham was charged with committing the offenses of assault with intent to commit murder (MCLA 750.83; MSA 28.278) and armed robbery (MCLA 750.529; MSA 28.797). His trial was interrupted after two days when he offered to plead guilty to the offense of armed robbery. He was sentenced to serve a term of 10 to 25 years.

Subsequently, Wickham moved for a "new trial". At the hearing on the motion, Wickham and his sister testified that he was given to understand that there was a "chance" he would be sentenced to serve 5 to 15 years if he pled guilty. Neither Wickham nor his sister claimed that he was promised a sentence not exceeding 5 to 15 years. The trial judge found that Wickham's plea of guilty was voluntary and denied the motion.

On appeal Wickham claims that the judge erred (1) in denying his motions, made before he pled guilty, to suppress a revolver taken from his apartment shortly after his arrest and a confessional statement which he gave to the police, and (2) in not granting his post-conviction motion.

Taking the second issue first, we have concluded, in the light of Wickham's and his sister's testimony that he was told only that there was a chance that he would be sentenced to serve 5 to 15 years, that the judge did not clearly err in denying the post-conviction motion.

Turning to the first issue, the established rule in this state is that a plea of guilty waives the defendant's right to appeal from an earlier order denying a motion to suppress evidence.^[1] In some other jurisdictions the right of appeal from an order denying such a motion is preserved without regard to whether the defendant is convicted by a jury's verdict or a judge's finding following a trial, or whether he is convicted on his plea of guilty.^[2] It would be clearly beyond the province of this Court to adopt a rule recognizing such a right of appeal following a plea of guilty in the face of the established, long-standing practice. If the rule in this state is to be changed, the Supreme Court or the Legislature must change it.

We have examined the plea-taking transcript in the light of People v Jaworski, 387 Mich. 21 (1972). When Wickham offered to plead guilty, he was not advised of his right to a jury trial or of his right to confront the witnesses or of his right against self-incrimination, and under Jaworski he would, therefore, ordinarily be entitled to a reversal of his conviction.

Wickham's plea was, however, offered before June 2, 1969, the date on which Boykin v Alabama, 395 U.S. 238; 89 S. Ct. 1709; 23 L. Ed. 2d 274 (1969), was decided. It appears that the Michigan Supreme Court intends to limit its Jaworski rule to post-Boykin cases. Any implication in People v Butler, 387 Mich. 1, 6 (1972), that the Jaworski rule would be applied to pre-Boykin cases through the medium of GCR 1963, 785.3(2) has, we think, been superseded by more recent expressions of our Supreme Court indicating that the Jaworski rule is to apply only to post-Boykin cases. People v Carlisle, 387 Mich. 269, 276 (1972); People v Duffield, 387 Mich. 300 (1972), fn 17. See Winegar v Department of Corrections, 41 Mich. App. 318 (1972), where we said that Jaworski applies only to post-Boykin pleas of guilty.

Affirmed.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] See People v Irwin, 24 Mich. App. 582 (1970); People v Hart, 26 Mich. App. 370 (1970); People v Knopek, 31 Mich. App. 129 (1971).

[2] See Cal Penal Code, § 1538.5, subdivision (m); New York Crim Proc Law, § 710.70, subdivision 2; cf. Doran v Wilson, 369 F2d 505, 507 (CA 9, 1966). See, also, Perin v Peuler, 373 Mich. 531, 541 (on rehearing, 1964).