Opinion
Docket No. 163671.
Submitted August 1, 1994, at Grand Rapids.
Decided December 6, 1994, at 9:00 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and David LaGrand, Assistant Prosecuting Attorney, for the people.
Kathleen M. Gaydos, for the defendant on appeal.
Defendant appeals as of right from her conviction based on her guilty plea to a charge of drawing a check over $200 without sufficient funds. MCL 750.131(3)(c); MSA 28.326(3)(c). She raises two issues on appeal. First, she claims ineffective assistance of counsel, because her court-appointed attorney advised her to unconditionally plead guilty, even though the prosecutor had already violated the 180-day rule in MCR 6.004(D)(1) (a). She also contends that she did not waive her right to a speedy trial. We affirm, but only for the reasons set forth below.
When reviewing a claim of ineffective assistance of counsel arising out of a guilty plea, our Court must determine whether the defendant tendered a plea voluntarily and understandingly. In re Oakland Prosecutor, 191 Mich. App. 113, 120; 477 N.W.2d 455 (1991). Our Court has also concluded that a defendant waives review of a claim that the 180-day rule had been violated upon entry of an unconditional guilty plea. People v Irwin, 192 Mich. App. 216, 218; 480 N.W.2d 611 (1991). Furthermore, our Court recently decided that a defendant waives ineffective assistance claims by unconditionally pleading guilty where the issues relate solely to the state's capacity to prove factual guilt. People v Vonins (After Remand), 203 Mich. App. 173, 175; 511 N.W.2d 706 (1993). There, a panel of our Court said:
Where the alleged deficient actions of defense counsel relate to issues that are waived by a valid unconditional guilty plea, the claim of ineffective assistance of counsel relating to those actions is also waived. [ Vonins, p 176, citing People v Nunn, 173 Mich. App. 56, 58; 433 N.W.2d 331 (1988).]
Having reviewed the record, we are persuaded that defendant's guilty plea was essentially knowing and voluntary. Defendant indicated that she wished to have all charges against her resolved. To that end, she had contacted each county having an outstanding warrant for her arrest. A sufficient factual basis supported her guilty plea in this case.
However, we are not convinced that defendant's guilty plea should stand. It seems obvious to us that her attorney failed to advise her of the legal effect of the 180-day rule violation in this case. We cannot conceive that, otherwise, she would have pleaded guilty to the charges against her. We do not believe that counsel's error was trivial. The enhanced punishment permitted by our habitual offender statutes makes any felony conviction significant in future criminal actions against the party. We do not believe any defendant would voluntarily waive dismissal of the charges against him, unless his counsel was ineffective.
We acknowledge that, in numerous other instances, waiver of a supplemental claim of ineffective assistance is proper when a defendant waives an underlying issue by an unconditional guilty plea. A defendant and defense counsel are not permitted to harbor error and create an appellate parachute. But no such advantage accrues to a defendant if his attorney refrains from advising that the 180-day rule has been violated.
Notwithstanding our persuasion, pursuant to Administrative Order No. 1994-4, we are bound to follow Vonins, supra. Consequently, we rule that entry of defendant's unconditional guilty plea waived any claim of a 180-day rule violation; she cannot raise a supplemental ineffective assistance of counsel claim based on defense counsel's failure to pursue the rule violation.
Defendant has waived a claim that her constitutional right to a speedy trial was violated. Entry of her unconditional guilty plea made voluntarily and knowingly clearly waived further review of it. Irwin, p 218.
Affirmed.
I agree with the reasoning of the majority. I write a separate concurrence only because I have read People v Smith, 438 Mich. 715; 475 N.W.2d 333 (1991), several times and still don't know whether violation of the 180-day rule is a jurisdictional defect. See People v New, 427 Mich. 482, 492; 398 N.W.2d 358 (1986), and People v Irwin, 192 Mich. App. 216, 218; 480 N.W.2d 611 (1991). I think that question needs to be resolved before the issues raised by this defendant can be decided with finality.