People v. Bordash

208 Mich. App. 1 (1994) 527 N.W.2d 17 PEOPLE v. BORDASH Docket No. 163671. Michigan Court of Appeals. 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. *2 Before: HOOD, P.J., and MARILYN KELLY and J.L. MARTLEW,[*] JJ. PER CURIAM. 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 NW2d 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 NW2d 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 NW2d 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 *3 also waived. [Vonins, p 176, citing People v Nunn, 173 Mich App 56, 58; 433 NW2d 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 *4 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. J.L. MARTLEW, J. (concurring). 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 NW2d 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 NW2d 358 (1986), and People v Irwin, 192 Mich App 216, 218; 480 NW2d 611 (1991). I think that question needs to be resolved before the issues raised by this defendant can be decided with finality. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.