Opinion
Docket No. 132154.
Submitted October 2, 1992, at Detroit.
Decided February 1, 1993, at 9:25 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, for the people. Stuart L. Young, for the defendant.
Before: SHEPHERD, P.J., and WEAVER and TAYLOR, JJ.
Defendant, Michael A. Gaines, was convicted by an Oakland Circuit Court jury of receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803, and thereafter pleaded guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. He was sentenced to 2 1/2 to 7 years' imprisonment, to be served consecutively to another sentence he was then serving. He now appeals as of right. We affirm. This case, pursuant to MCR 7.214(E)(1)(b), has been decided without oral argument.
Defendant's evidentiary issue has not been preserved for appellate consideration because he did not testify and the challenged evidence was not introduced at trial. People v Finley, 431 Mich. 506; 431 N.W.2d 19 (1988).
Next, we reject defendant's claim of instructional error. The misdemeanor instruction defendant requested on receiving and concealing stolen property valued at $100 or less was not supported by a rational view of the evidence. People v Lucas, 188 Mich. App. 554, 582; 470 N.W.2d 460 (1991); People v Steele, 429 Mich. 13, 21; 412 N.W.2d 206 (1987).
Finally, defendant's challenge concerning the validity of his habitual offender plea is not properly before us because he did not move to withdraw the plea in the trial court. MCR 6.311(A) and (C). In People v Quinn, 194 Mich. App. 250, 254; 486 N.W.2d 139 (1992), this Court recognized an exception to the formal motion requirement where, among other things, there was a complete failure to inform the defendant on the record of the rights enumerated in MCR 6.302. However, Quinn is distinguishable from this case because, here, there is no error that requires retrial on the underlying offense. Absent this significant fact, we decline to ignore the clear requirements of MCR 6.311(C) that the filing of a motion for plea withdrawal at the trial level is a prerequisite to obtaining relief on appeal.
Affirmed.