People v. Smith

Sawyer, J.

Defendant pled guilty to prison escape. MCL 750.193; MSA 28.390. She was sen-fenced to serve a term of six months to five years in prison, to run consecutively to the sentence she was serving at the time of her escape. She now appeals and we reverse and vacate the conviction.

Defendant argues that the court lost jurisdiction over this matter because the prosecutor failed to exercise a good-faith effort to bring her to trial within 180 days after the issuance of the arrest warrant and her incarceration in the Genesee County jail on an unrelated charge, in violation of the so-called 180-day rule. MCL 780.131; MSA 28.969(1). We agree. Defendant was in the custody of the Department of Corrections at a half-way facility located in the City of Detroit when she "escaped” by failing to return to the facility when required on February 9, 1987. On February 20, 1987, the 36th District Court issued a warrant for defendant’s arrest on the prison escape charge. On April 18, 1987, defendant was arrested in Genesee County on an unrelated charge and was lodged in the Genesee County jail to await trial on that charge.

This Court, in People v England, 177 Mich App 279, 284; 441 NW2d 95 (1989), held that an escaped prisoner who is being held in a county jail awaiting trial on an unrelated charge is considered to be within the custody of the Department of Corrections for purposes of the 180-day rule. Thus, defendant was in the Department of Corrections’ custody from the time of her arrest.¹ Furthermore, inasmuch as the Department of Corrections was the complainant on the prison escape charge, the department knew or should have known that a warrant was outstanding against defendant from the date of its issuance on February 20, thus triggering the running of the 180-day period from the date of defendant’s subsequent arrest.² Accordingly, we conclude that the 180-day period under the statute began running upon defendant’s arrest in Genesee County. Thus, defendant was not brought to trial within 180 days of that arrest. Furthermore, since the people have not shown any just cause for the delay, we conclude that the requirements of the statute were violated in this case and, therefore, defendant is entitled to have her conviction reversed and vacated.

Finally, we wish to briefly address the people’s argument that defendant’s guilty plea waived appellate review of this issue. The prosecutor is correct that an unconditional guilty plea waives appellate review of a constitutional speedy trial claim. People v Rivera, 164 Mich App 670; 417 NW2d 569 (1987). Thus, to the extent that defendant does also argue a violation of her constitutional right to speedy trial, appellate review of that argument has been waived by her unconditional guilty plea. However, defendant argued, and we decided, this matter on the basis of a violation of the 180-day rule statute and this statute is jurisdictional. Accordingly, the issue of a violation of the 180-day rule is not waived by a guilty plea since a guilty plea does not waive jurisdictional issues. Rivera, supra.

As for the view of the dissent that the issue of the violation of the 180-day rule is waived since it affects personal, rather than subject-matter, jurisdiction, we must disagree. Even assuming that our colleague in dissent is correct that this issue involves a question of personal jurisdiction, a conclusion upon which we offer no opinion, we do not believe it affects the analysis. The Supreme Court explained in People v New, 427 Mich 482, 495-496; 398 NW2d 358 (1986), what issues are waived by a guilty plea:

In summary, in addition to the Reid [People v Reid, 420 Mich 326; 362 NW2d 655 (1984)] conditional plea situation, a criminal defendant may appeal from an unconditional guilty plea or a plea of nolo contendere only where the claim on appeal implicates the very authority of the state to bring the defendant to trial, that is, where the right of the government to prosecute the defendant is challenged. Such rights are never waived by a plea of guilty or nolo contendere. Where the claim sought to be appealed involves only the capacity of the state to prove defendant’s factual guilt, it is waived by a plea of guilty or nolo contendere.

Thus, the question is not, as our dissenting colleague would hold, whether defendant could waive the issue. See post, pp 543-544, 548. Rather, the question is whether the issue goes to the state’s authority to prosecute or to the state’s ability to prove guilt. The 180-day rule involves the former issue, not the latter. Accordingly, it is not waived by a guilty plea. Simply put, the issue is not whether defendant could have waived the issue, but whether she did waive it. In the case at bar, defendant did not.

For the above reasons, we conclude that defendant’s conviction should be reversed, and since the court lacks jurisdiction to try defendant, the decision is with prejudice to reinstating charges against defendant and, thus, the conviction must be vacated as well.

Defendant’s conviction is reversed and vacated.

Gillis, J., concurred.

1 The people also argue that, if we do accept defendant’s incarceration in the Genesee County jail as being within the custody of the Department of Corrections, which we do, we should commence the running of the 180-day period only from the date on which the Department of Corrections placed a hold on defendant, which the people represent as being December 29, 1987. First, we are not convinced that the period for calculating the 180-day rule should only run from the date a hold was formally placed on defendant by the Department of Corrections. As the Court pointed out in England, supra at 284, the defendant "was an escaped prison inmate detained in jail awaiting certain return to prison.” We conclude that defendant was detained in the Genesee County jail awaiting an eventual return to prison from the moment she was arrested and lodged in the Genesee County jail by local officials and, thus, was in the department’s custody for purposes of the 180-day rule.

Furthermore, nothing in the record before us establishes that the Department of Corrections did not place a hold on defendant until December 29, 1987. The only "hold” reflected in the lower court record on December 29,1987, or any other date for that matter, was a hold placed upon defendant in the instant action in the Recorder’s Court. Moreover, defendant was not even in Genesee County’s custody on December 29, 1987, inasmuch as that was the day she was arraigned in 36th District Court on the instant offense. In fact, defendant had been sentenced on the Genesee County matter on December 8 and, although the record is not entirely clear, was at that time either returned to the custody of the Department of Corrections or to the custody of Wayne County.

Moreover, although the record does not reflect when a hold was placed upon defendant while in Genesee County’s custody, at the hearing on the motion to quash a somewhat cryptic exchange between the trial court and defendant indicates that a hold was placed upon defendant at some point during her incarceration in the Gene-see County jail. Specifically, while discussing her custody in Genesee County, the trial court inquired of defendant whether there was a hold or lien from the Department of Corrections, to which the defendant replied in the affirmative and indicated that "the Corrections Department came and gave me 30 days loss of privilege for escape.” In any event, even if the "hold” date were relevant, there is no reason to believe from the record that a hold was not placed on defendant soon after her incarceration in Genesee County and, more to the point, the people’s representation that a hold was not placed on defendant until December 29 is not supported by what few facts there are in the record surrounding this issue.

2 The people’s argument that the prosecutor should not be charged with knowledge of defendant’s incarceration until December 29, 1987, is both irrelevant and without merit. First, since the Department of Corrections is charged with knowledge of the outstanding warrant, that is sufficient to begin the running of the 180-day rule. England, supra at 283. Furthermore, inasmuch as the escape warrant was entered on the lein, the Genesee officials would have been aware as soon as they arrested and identified defendant of the outstanding escape warrant and we believe that it would be appropriate to charge that knowledge to the Wayne County prosecutor for purposes of ,the 180-day rule, thus satisfying the alternate requirement that the prosecutor knows or should have known of the defendant’s incarceration. Id.