People v. Wiley

112 Mich. App. 344 (1981) 315 N.W.2d 540

PEOPLE
v.
WILEY.

Docket No. 53200.

Michigan Court of Appeals.

Decided November 6, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.

Angela R. Sims, for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.

PER CURIAM.

The defendant was charged with criminal sexual conduct in the second degree, MCL 750.520c; MSA 28.788(3), and unarmed robbery, MCL 750.530; MSA 28.798, arising out of an incident that took place on July 26, 1979. In addition, he was charged with criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), arising out of a separate incident which took place on July 30, 1979.

The defendant entered pleas of guilty in both cases and subsequently was sentenced to from 7 to 15 years on the first-degree criminal sexual conduct conviction, and concurrent terms of from 7 to 15 years for the second-degree criminal sexual conduct and the unarmed robbery convictions.

The record indicates that defendant had three court-appointed attorneys. After expressing dissatisfaction with his first two attorneys, the court obliged him by appointing a third attorney. The defendant's plea testimony expressed satisfaction with this third attorney. Now, however, appellate counsel alleges that the defendant's pleas were involuntary because he was denied effective assistance of counsel.

The defendant did not file a motion to withdraw the pleas based on this issue. Instead, this appeal and a motion to remand on the issue of the defendant's involuntary pleas as the result of ineffective assistance of counsel were filed. On March 23, 1981, an order denying the motion to remand was issued by the Court of Appeals for lack of merit on the grounds presented. Inasmuch as the same issue is now being raised, the motion on the merits is "the law of the case", barring further review in this Court. People v Hines, 88 Mich. App. 148, 155-156; 276 NW2d 550 (1979), Allen v Michigan Bell Telephone Co, 61 Mich. App. 62, 65; 232 NW2d 302 (1975).

Our independent examination of this record reveals nothing which indicates that the defendant was denied effective assistance of counsel. The record indicates that when the defendant was asked whether he was satisfied with his attorney, he replied in the affirmative. Further, the defendant denied that he was forced to plead guilty or that he was promised any leniency. The defendant directs the Court's attention to ex parte affidavits, introduced for the first time on appeal, rather than the record to support his claim. "Ex parte affidavits, filed for the first time in the appellate brief, may not serve to enlarge the record on appeal." People v Nelson Johnson, 58 Mich. App. 473, 478; 228 NW2d 429 (1975).

Further, the defendant argues that it was not established at the preliminary examination or the plea hearing that the money taken was in the complainant's presence or that the taking was by force, violence, assault, or by putting the victim in fear. There is no requirement that the money taken be within a victim's presence if it is within his control and he lost control because of the violence of, of his fear of, the defendant. People v Gary Spry, 74 Mich. App. 584, 595; 254 NW2d 782 (1977).

In this case, the defendant entered a bedroom where the complainant was sleeping. He took hold of her by the arm, climbed on top of her, and demanded sex. After a struggle, the encounter ended and the defendant fled from the bedroom and, while passing through the kitchen, took the complainant's money. We conclude that the trial court did not err in finding a sufficient factual basis to support the unarmed robbery conviction. Furthermore, "[a] guilty plea waives all defects that go to whether the government can actually prove its case * * *". People v Riley, 88 Mich. App. 727, 730; 279 NW2d 303 (1979). The defendant's challenge to the factual basis for the charge at the preliminary examination is, therefore, procedurally prohibited.

Affirmed.