People v. Perez , 143 Mich. App. 718 ( 1985 )

143 Mich. App. 718 (1985) 373 N.W.2d 202

PEOPLE
v.
PEREZ

Docket No. 76140.

Michigan Court of Appeals.

Decided June 19, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

George S. Buth, for defendant on appeal.

Before: SHEPHERD, P.J., and R.M. MAHER and W.R. PETERSON,^[*] JJ.

PER CURIAM.

Defendant was charged with possession with intent to deliver less than 50 grams of heroin, MCL 333.7401, subds (1) and (2)(a)(iv); MSA 14.15(7401), subds (1) and (2)(a)(iv); knowing possession of less than 50 grams of cocaine, MCL 333.7403, subds (1) and (2)(a)(iv); MSA 14.15(7403), subds (1) and (2)(a)(iv); and as a third felony offender, MCL 769.11; MSA 28.1083 and MCL 769.13; MSA 28.1085. Pursuant to a plea bargain, defendant pled guilty to a charge of attempt to possess with intent to deliver less than 50 grams of heroin, MCL 333.7401, subds (1) and (2)(a)(iv); MSA 14.15(7401), subds (1) and (2)(a)(iv); MCL 750.92; MSA 28.287, and to the third felony offender charge. He was subsequently sentenced to a prison term of 5 to 10 years, and now appeals as of right.

On appeal, defendant argues that his plea-based convictions should be reversed because the evidence against him (the heroin and cocaine found in his hotel rooms) was obtained in violation of his Fourth Amendment rights. Defendant contends that the affidavit upon which the search warrant for his hotel rooms was based did not provide probable cause for the issuance of the search warrant and that the police failed to follow the "knock and announce" rule, MCL 780.656; MSA 28.1259(6), before executing the warrant. We do not address these issues, however, because we find that, by pleading guilty, defendant waived his right to raise these issues on appeal.

In People v Alvin Johnson, 396 Mich. 424, 443-444; 240 NW2d 729 (1976), the Supreme Court stated that jurisdictional claims and certain nonjurisdictional claims were not waived by a guilty plea:

"Thus, it is clear that the United States Supreme Court, while recognizing that certain rights of defendant may be waived by a subsequent plea of guilty, does not say that is true of all rights. Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state's interest in punishing the defendant, or the state's authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right." (Footnotes deleted.)

Defendant relies upon this statement as support for his right to raise his search and seizure issues on appeal. However, the statement in Alvin Johnson, supra, has since been modified by the Supreme Court in People v Reid, 420 Mich. 326, 431-432; 362 NW2d 655 (1984). In Reid, the Supreme Court twice stated that a defendant would not waive his or her right to raise search and seizure claims where two conditions were met:

"We hold that a defendant may appeal from a denial of a Fourth Amendment or Const 1963, art 1, § 11 search and seizure claim where, as here, the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was violated is sustained and the defendant, the prosecutor, and the judge have agreed to the conditional plea." See also 420 Mich. 337.

In this case, although the first requirement may arguably have been met, defendant did not tender a conditional guilty plea. We find that he has, therefore, waived his right to appeal from the trial court's rulings on defendant's search and seizure claims.

Affirmed.

NOTES

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