Michigan Court of AppealsJul 25, 1984
137 Mich. App. 701 (Mich. Ct. App. 1984)

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Docket No. 69728.

Decided July 25, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.

Thomas J. Bleau, for defendant on appeal.

Before: SHEPHERD, P.J., and ALLEN and A.E. KEYES, JJ.

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

Defendant pled guilty to delivery of a controlled substance (LSD), MCL 333.7401; MSA 14.15(7401), and was sentenced on December 20, 1982, to a term of from 56 to 84 months imprisonment. He now appeals as of right.

Defendant first claims on appeal that he was entrapped by police and his conviction must therefore be reversed and the charge dismissed. We disagree.

While entrapment is considered the equivalent of a jurisdictional defect and is therefore not waived by defendant's plea of guilty, People v White, 411 Mich. 366, 387; 308 N.W.2d 128 (1981), the defense is waived if the defendant clearly abandons the entrapment claim at the trial court level. Here, at the plea-taking proceeding, the following discussion occurred:

"The Court: There was originally scheduled for this morning a hearing on a motion asserting that the defendant was entrapped. I have since been advised that the parties have entered into an agreement which would result in the defendant entering a plea of guilty. Is that your understanding [defense counsel]?

"[Defense Counsel]: That's correct, your Honor.

"The Court: And, [Assistant Prosecutor]?

"[Assistant Prosecutor]: Yes, your Honor. "The Court: Is it intended by the defendant to abandon the entrapment issue?

"[Defense Counsel]: Yes, your Honor.

* * *

"The Court: A motion was filed on your behalf, asking that the court consider whether or not under the law you were entrapped in connection with this offense. You're entitled to have that heard and determined. Do you understand that?

"Defendant: Yes.

"The Court: And if it was determined that you were legally entrapped, the charges would be dismissed against you in their entirety. Do you understand that?

"Defendant: Yes.

"The Court: And [defense counsel] has indicated that you do not want me to hear that motion. Is that correct?

"Defendant: Yes.

"The Court: Okay. Or anyone else — any other judge. You just don't want it heard, is that right?

"Defendant: Yeah. Yes, sir."

Although defendant was clearly given the opportunity to retract his proffered guilty plea and proceed to an evidentiary hearing on the issue of entrapment, he specifically and voluntarily chose to waive this defense. As in People v Virga, 111 Mich. App. 807, 808; 314 N.W.2d 765 (1981), "we are persuaded that defendant has waived his right to request from this Court the identical relief which the trial court sua sponte offered and defendant knowingly rejected". As in Virga, defendant was offered the opportunity to have his plea set aside and the merits of his defense of entrapment submitted to the factfinder. Also as in Virga, he chose not to do so. He may not now base a claim of judicial error on his own free and informed exercise of choice. See also People v Douglas, 122 Mich. App. 526, 530; 332 N.W.2d 521 (1983).

Defendant next argues that his sentence was disproportionate to the crime involved and therefore constitutes cruel and unusual punishment and an abuse of the trial court's discretion. We disagree.

Although defendant relies on the sentencing guidelines promulgated by the Michigan Supreme Court to support his claim of disproportionality, use of the sentencing guidelines was neither suggested nor mandatory at the time defendant was sentenced.

We do not find the sentence imposed here to be cruel or unusual. It was within the statutory limits. Defendant had previous felony and misdemeanor convictions and had previously violated conditions of probation and parole. The presentence report also indicated that defendant was frequently involved with drugs and sold drugs to supplement his income. For the same reasons, while the sentence cannot be considered lenient, we cannot say that our collective judicial conscience is shocked by its imposition.