People v. Peters , 95 Mich. App. 589 ( 1980 )

95 Mich. App. 589 (1980) 291 N.W.2d 133

PEOPLE
v.
PETERS

Docket No. 78-4236.

Michigan Court of Appeals.

Decided February 21, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Alice F. Sage, Assistant Prosecuting Attorney, for the people.

Max D. McCullough, for defendant on appeal.

Before: ALLEN, P.J., and V.J. BRENNAN and MacKENZIE, JJ.

PER CURIAM.

On August 4, 1978, defendant pled guilty to the offense of armed robbery, contrary to MCL 750.529; MSA 28.797. He was sentenced to 10 to 15 years imprisonment and appeals as of right, raising three issues. We consider each in turn.

First, defendant claims that statements taken from him by police officers while in their custody were involuntary since he, as a 16-year-old minor, was incapable of waiving his Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966), rights to remain silent and to the presence of an attorney. On December 13, 1977, defendant was arrested with his brother in connection with the December 12, 1977, robbery and shooting death of Janet DeCoster at her home in Macomb County. While in custody the following day, and after he was read his Miranda rights, defendant was questioned by the police. This questioning resulted in two or three incriminating statements. Defendant now challenges the admissibility of these confessions.

We need not reach the merits of defendant's claim that the confessions were illegally obtained because defendant's counselled guilty plea, nearly eight months after the statements were made, constitutes a waiver of the purported infirmity. People v Peters, 397 Mich. 360, 369-371; 244 NW2d 898 (1976). See People v Figlus, 86 Mich. App. 552; 272 NW2d 722 (1978).

Second, defendant contends that his plea bargain was illusory because, while he accepted the prosecutor's offer to plead guilty to armed robbery in exchange for the prosecutor's dismissal of a felony-murder charge, defendant states that he could not have been properly convicted of this charge since he neither committed nor aided and abetted in the murder of Janet DeCoster.

Following the lead of the United States Court of Appeals in Hammond v United States, 528 F2d 15 (CA 4, 1975), this Court has not hesitated to take appropriate action on an appeal from a guilty plea which is involuntary as a matter of law because the bargain on which the plea was based was illusory. People v Lawson, 75 Mich. App. 726; 255 NW2d 748 (1977), People v Roderick Johnson, 86 Mich. App. 77; 272 NW2d 200 (1978), People v Sanders, 91 Mich. App. 737; 283 NW2d 841 (1979). Conversely, if the facts in the case indicate that "the plea was nevertheless voluntary", the plea will be upheld notwithstanding that there was a failure of consideration between the parties regarding part of the plea agreement. People v Phillip Smith, 407 Mich. 906 (1979), People v James, 90 Mich. App. 424; 282 NW2d 344 (1979), People v Rowe, 85 Mich. App. 106; 270 NW2d 472 (1978).

Nonetheless, in the instant case, it is unnecessary to consider the merits of the plea-bargaining arrangement since, as a matter of law, defendant could have been properly charged with felony murder in count I of the information.^[1] As such, a valid promise by the prosecutor to forego prosecution of this charge in exchange for defendant's plea to the second count was of significant benefit to the defendant. The value of the bargain to defendant was genuine, valid, and known to defendant. Therefore, since defendant surrendered his right to trial in full apprehension of the value of the commitments made to him, his plea of guilty cannot be challenged as being the result of an illusory plea bargin.

Finally, defendant claims that the testimony offered at the waiver hearing and the preliminary examination was insufficient to show probable cause to charge him with felony murder. Whatever may be said about the merits of this contention, by pleading guilty without seeking review in the circuit court of the juvenile waiver decision, defendant waived any infirmity in that proceeding. People v Figlus, supra, People v Mahone, 75 Mich. App. 407; 254 NW2d 907 (1977). Likewise, "[e]rrors and irregularities relating to the preliminary examination may not be raised on appeal [to this Court] unless those issues were timely raised prior to or at trial" or before defendant pleads guilty. People v Miller, 62 Mich. App. 495, 497; 233 NW2d 629 (1975). In addition, the defendant cannot, subsequent to his guilty plea, raise questions about the sufficiency of the evidence before the examining magistrate. Id., at 498, People v Cullens, 55 Mich. App. 272; 222 NW2d 315 (1974). Accordingly, we conclude that the issue has not been preserved for appellate review.

Affirmed.

NOTES

[1] See e.g., People v Poplar, 20 Mich. App. 132; 173 NW2d 732 (1969), People v Wirth, 87 Mich. App. 41; 273 NW2d 104 (1978).