People v. Nydam

165 Mich. App. 476 (1987) 419 N.W.2d 417

PEOPLE
v.
NYDAM

Docket No. 97518.

Michigan Court of Appeals.

Decided September 23, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

Kelly, Henkel & David, P.C. (by Michael F. Kelly and Lynn Marie Perry), for defendant.

Before: CYNAR, P.J., and WEAVER and J.H. HAUSNER,^[*] JJ.

PER CURIAM.

Following the Kent Circuit Court's denial of defendant's motion to strike the use of prior convictions, on December 17, 1986, defendant conditionally pled guilty to, and was convicted of, driving while under the influence of intoxicating liquor (OUIL), third offense, MCL 257.625; MSA 9.2325, preserving his right to appeal the denial of his motion.

Defendant attempts to collaterally attack his two prior OUIL guilty pleas and convictions of January 22, 1982, and June 25, 1985, asserting their legal infirmity because the district judge did not explain on the record the rights defendant would have had at trial and did not determine whether defendant's pleas were voluntary. Defendant maintains that these prior convictions may not be used to enhance punishment for his third OUIL conviction of December 17, 1986.

We disagree. Collateral attack is limited to situations where the constitutional requirements of People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972),^[1] are not met. However, since these safeguards apply to felonies and not to misdemeanors, People v Tomlinson, 50 Mich App 655, 658-659; 213 NW2d 803 (1973), lv den 391 Mich 824 (1974), collateral attack reaches only those situations where the Jaworski rights were required but not given. See City of Livonia v Jasik, 393 Mich 439, 442-443; 224 NW2d 838 (1975). See also MCR 6.201(D)(5); People v Jelneck, 148 Mich App 456, 461-462; 384 NW2d 801 (1986), lv den 425 Mich 876 (1986); People v Cain, 148 Mich App 765, 769-771; 385 NW2d 632 (1985); People v Crawford, 417 Mich 607, 615; 339 NW2d 630 (1983) (BRICKLEY, J., concurring). Because the right to counsel coupled with the voluntary act of pleading guilty or nolo contendere provides sufficient protection for misdemeanor defendants, Tomlinson, supra at 659, the prior misdemeanor pleas in this case are not subject to collateral attack.

Further, a guilty plea is constitutionally valid if, as in this case, from the totality of the record it appears to have been intelligently and voluntarily made. See, e.g., Carver v Wharton, 532 F Supp 512 (SD Ga, 1982); United States v Frontero, 452 F2d 406 (CA 5, 1971). Article I, section 17 of the Michigan Constitution creates no greater right against self-incrimination than does the Fifth Amendment to the United States Constitution. Paramount Pictures Corp v Miskinis, 418 Mich 708, 726, 728; 344 NW2d 788 (1984). Hence there is no basis for reading into the Michigan Constitution a right permitting collateral attack on prior plea-based convictions which, as here, were never appealed.

Plaintiff was represented by counsel at the time he entered his two prior OUIL guilty pleas. Having had the benefit of counsel, it would be unfair to permit such a defendant to raise for the first time several years after the fact a challenge to his plea-based convictions. Such permission would in effect grant to a defendant a license to lie in the weeds, voluntarily enter a guilty plea, accept the consequences thereof, and then (when once again convicted of driving while intoxicated) attempt to avoid the effect of his prior conviction through a legal artifice.

Affirmed.

NOTES

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

[1] In Jaworski, supra, the Michigan Supreme Court held that in order to meet constitutional requirements for acceptance of a defendant's guilty plea, the defendant must waive his rights to a jury trial, confrontation of witnesses, and against self-incrimination, and the record must show that the defendant was informed of each of and all of these rights. Id. at 28-29.