Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  November 30, 2010                                                                        Marilyn Kelly,
                                                                                               Chief Justice

  141513                                                                            Michael F. Cavanagh
                                                                                      Maura D. Corrigan
                                                                                     Robert P. Young, Jr.
                                                                                     Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                   Diane M. Hathaway
            Plaintiff-Appellee,                                                     Alton Thomas Davis,
                                                                                                    Justices

  v                                                       SC: 141513
                                                          COA: 297182
                                                          Muskegon CC: 08-056761-FH
  SCOTT BENNETT HARRIS,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the June 4, 2010 order of
  the Court of Appeals is considered, and it is GRANTED. The parties shall address:
  (1) whether the rule of People v Adams, 262 Mich App 89 (2004) — holding that
  inability to pay is not a defense to the crime of felony non-support under MCL 750.165
  — is an incorrect reading of the statute or unconstitutional, see Port Huron v Jenkinson,
  77 Mich 414 (1889); (2) whether the trial court abused its discretion when it denied the
  defendant’s post-sentencing motion to withdraw his plea; and (3) whether the trial court
  erred when it adopted the child support arrearage amount that had been determined by
  family court as the restitution to be imposed in this criminal case, or whether the
  defendant waived that issue.

         We further ORDER that this case be argued and submitted to the Court together
  with the cases of People v Likine (Docket No. 141154) and People v Parks (Docket No.
  141181) at such future session of the Court as the cases are ready for submission. Each
  side will have 30 minutes for oral argument.

         The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys
  Association of Michigan are invited to file briefs amicus curiae. Other persons or groups
  interested in the determination of the issues presented in this case may move the Court
  for permission to file briefs amicus curiae.

         YOUNG, J. (dissenting).
                                                                                         2

       Because defendant’s unconditional guilty plea to felony non-support waived any
claim that defendant was constitutionally entitled to raise an indigency defense, I dissent
from the order granting leave to appeal.

       Pursuant to the Cobbs1 evaluation provided by the trial court, defendant pled
guilty to felony non-support2 in exchange for a payment arrangement that would permit
defendant to avoid incarceration. Specifically, defendant agreed to pay $3,000 by
December 8, 2008, at which point his sentencing would be adjourned for six months. If
defendant paid an additional $5,000 toward his arrearage by the end of the six month
period, he would avoid incarceration altogether. Defendant’s guilty plea contained no
conditions. When defendant had not paid the agreed-upon amount by the agreed-upon
time, he was sentenced to a term of imprisonment within the sentencing guidelines. Nine
months after sentencing, defendant raised for the first time his claim of indigency in his
motion to withdraw his guilty plea.

        An unconditional guilty plea that is knowing and intelligent—and defendant
makes no claim that his guilty plea was otherwise—waives claims of error on appeal,
even claims of constitutional dimension.3 Two recognized exceptions to this rule exist.
The first recognized exception is that the court below lacked subject-matter jurisdiction
over the case, “because it involves a court's power to hear a case, [which] can never be
forfeited or waived.” 4 The second exception is the defendant's right “not to be haled into
court at all,”5 which implicates “the very authority of the state to bring a defendant to
trial,” not merely “the factual determination of defendant's guilt.”6 An example of this
exception is a claim that a charged offense violated the double jeopardy clause, which
may be appealed despite a defendant’s admitted guilt.7

       As none of defendant’s claims falls into either of these exceptions, his claims of
error have been waived by his guilty plea. I would deny leave to appeal.



1
    People v Cobbs, 443 Mich 276 (1993).
2
    Defendant also acknowledged being a third habitual offender, MCL 769.12.
3
    See People v New, 427 Mich 482 (1986).
4
    United States v Cotton, 535 US 625, 630 (2002).
5
  Blackledge v Perry, 417 US 21, 30-31 (1974); Menna v New York, 423 US 61, 62-63 &
n. 2 (1975).
6
 People v New, 427 Mich at 491, quoting People v White, 411 Mich 366, 398 (1981)
(MOODY, J., concurring in part and dissenting in part).
7
    Menna v New York, 423 US at 63, n. 2.
                                                                                                              3


      DAVIS, J., not participating. I recuse myself and am not participating because I
was on the Court of Appeals panel in this case. See MCR 2.003(B).




                        I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        November 30, 2010                   _________________________________________
       p1124                                                                Clerk
