                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 11, 2016
               Plaintiff-Appellant,

v                                                                   No. 332779
                                                                    Macomb Circuit Court
ERIC JOSEPH WILLIAMS,                                               LC No. 2015-001454-FH

               Defendant-Appellee.


Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.

PER CURIAM.

       The prosecutor appeals as of right an order granting defendant’s motions to withdraw his
no-contest plea to second-degree home invasion, MCL 750.110a(3), and dismiss the charge. We
reverse.

        This case arises from a home invasion that occurred in 2009 in Eastpointe. On that day,
Jeanna Bennette came home from work to discover the side door to her house open. When she
went inside, Bennette discovered that her television had been stolen, so she called 911 and the
police responded. When the police arrived they found that one of the bedroom windows was
open, and concluded that was the burglar’s likely “entry point.” The police dusted two bedroom
windows for fingerprints and recovered two latent prints. The fingerprints were sent to the
Michigan State Police for review in January 2010, but they did not produce a match. However,
in 2015, the fingerprints were run through the system again, and they produced a match to
defendant. Accordingly, defendant was arrested, charged with second-degree home invasion,
and pleaded no-contest to the charge.

         Defendant eventually filed a motion to withdraw his plea due to ineffective assistance of
counsel arguing that defense counsel was ineffective because she “never advised [him] that pre-
arrest delay could be a basis for a pretrial motion to dismiss the charges against him,” and failed
to file a motion to dismiss defendant’s case “due to inexcusable and prejudicial pre-arrest delay.”
Further, defendant asserted that based on counsel’s failure, his plea “cannot be said to be
voluntary.” The trial court concluded that “there was ineffective assistance of counsel by
defense counsel insofar as she did not, and she admittedly so, did not research and argue the pre-
arrest delay.” Accordingly, the trial court granted defendant’s motion to withdraw his plea.
Defendant then made an oral motion “that the charges against [him] be dismissed on the grounds




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of prejudicial pre-arrest delay,” and the court granted the motion and directed defendant “be
released forthwith.”

        On appeal the prosecution first argues that, by pleading no-contest, defendant waived the
issues of pre-arrest delay and ineffective assistance related to that claim. We disagree.

         Entering a plea of nolo contendere is “an admission of all the essential elements of a
charged offense and, thus, is tantamount to an admission of guilt for the purposes of the criminal
case.” People v Patmore, 264 Mich App 139, 149; 693 NW2d 385 (2004). Accordingly, “a plea
of nolo contendere has the same effect upon a defendant’s ability to raise an issue on appeal as
does a plea of guilty.” People v Lannom, 441 Mich 490, 493 n 6; 490 NW2d 396 (1992), citing
People v New, 427 Mich 482, 493; 398 NW2d 358 (1986). An unconditional guilty plea waives
any claim pertaining to the capacity of the state to prove the defendant’s factual guilt, but does
not waive a claim that “implicates the very authority of the state to bring the defendant to trial,
that is, where the right of the government to prosecute the defendant is challenged.” New, 427
Mich at 495. Further, “[w]here 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.” People v Vonins (After Remand), 203 Mich App 173,
176; 511 NW2d 706 (1993).

         Accordingly, while defendant would have waived these issues if he raised them for the
first time on appeal, see e.g., People v Depifanio, 192 Mich App 257; 480 NW2d 616 (1991) (a
defendant’s guilty plea waives appellate review of violation of constitutional right to speedy
trial), the issue on appeal here is whether the trial court erred in granting defendant’s motion to
withdraw his plea and motion to dismiss the charge against him. Accordingly, this waiver
argument has no merit.

        The prosecutor next argues that, if these issues are not waived, pre-arrest delay was not a
viable defense to defendant’s charge because the pre-arrest delay did not prejudice defendant and
the pre-arrest delay was not due to the prosecutor’s intent to gain a tactical advantage.
Accordingly, the prosecutor argues that defense counsel did not provide ineffective assistance in
failing to advise defendant that his charge could be dismissed on that basis. Because defendant
was not denied the effective assistance of counsel, the prosecutor argues that defendant’s plea
was voluntarily, knowingly, and intelligently made, and the trial court, therefore, erred in
granting defendant’s motion to withdraw his plea. Because pre-arrest delay was not a viable
defense to the charge, the prosecutor also argues the trial court erred in dismissing the charge
against defendant. We agree.

        Whether pre-arrest delay violated a defendant’s right to due process is reviewed de novo.
People v Reid (On Remand), 292 Mich App 508, 511; 810 NW2d 391 (2011). “When a motion
to withdraw a plea is made after sentencing, the decision whether to grant it rests within the
discretion of the trial court. That decision will not be disturbed on appeal unless there is a clear
abuse of discretion resulting in a miscarriage of justice.” People v Haynes, 221 Mich App 551,
558; 562 NW2d 241 (1997), citing People v Eloby (After Remand), 215 Mich App 472, 475; 547
NW2d 48 (1996). “A trial court [] necessarily abuses its discretion when it makes an error of
law.” People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015), citing People v
Brown, 492 Mich 684, 688; 822 NW2d 208 (2012); People v Swain, 288 Mich App 609, 628-


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629; 794 NW2d 92 (2010). The trial court’s ruling on a motion to dismiss is also reviewed for
an abuse of discretion. People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012).

        First, pre-arrest delay was not a viable defense to defendant’s charge. We agree that
prejudice resulting from delay between the commission of an offense and an arrest may violate a
defendant’s due process rights. People v Patton, 285 Mich App 229, 236-237; 775 NW2d 610
(2009). However, in order to obtain a dismissal based on pre-arrest delay, a defendant must
establish that the delay caused actual and substantial prejudice to his ability to receive a fair trial.
Id. at 237. Actual prejudice must be shown, and merely speculative prejudice is insufficient.
People v Adams, 232 Mich App 128, 134-135; 591 NW2d 44 (1998). Substantial prejudice
impairs the defendant’s ability to defend against the charges to such an extent that the outcome
of the criminal proceeding was likely affected. Id. “If a defendant demonstrates prejudice, the
prosecution must then persuade the court that the reason for the delay sufficiently justified
whatever prejudice resulted.” Patton, 285 Mich App at 237. “[A]n investigative, as opposed to
tactical, delay does not violate [] Due Process.” Adams, 232 Mich App at 140. Finally, in order
to constitute substantial prejudice, the prejudice resulting from the pre-arrest delay must relate to
the defendant’s ability to defend against the charge at issue. See Adams, 232 Mich App at 134-
135.

        This defendant does not argue that evidence was lost, exculpatory witnesses became
unavailable, or that the pre-arrest delay caused other events to occur which diminished his ability
to present a defense to the second-degree home invasion charge. Defendant’s first arguments are
concerned not with defending against the merits of the 2009 home invasion, but with sentencing.
Defendant asserts that he was prejudiced because the delay deprived him of concurrent
sentencing and subjected him to a fourth habitual enhancement, rather than a third habitual
enhancement. Defendant committed the instant home invasion in October 2009, and while
undetected for that crime, he committed additional felonies in February and June 2010. It is true
that had there been no delay in charging defendant with the 2009 offense, perhaps defendant
would have been incarcerated and not even able to commit the 2010 felonies, obliterating the
need to consider concurrent sentencing and the habitual enhancement. However, the commission
of the additional felonies was his choice and the prejudicial effect of that choice resides wholly
with him. Accordingly, defendant does not assert the type of prejudice necessary to establish
actual and substantial prejudice. Thus, while there was a substantial delay between the offense
and arrest, defendant has failed to prove that the prejudice he asserts was “actual and substantial”
to the extent that it “meaningfully impaired” his “ability to defend against” the home invasion
charge and, as a result, “the disposition of the criminal proceeding was likely affected.” People v
Cain, 238 Mich App 95, 110; 605 NW2d 28 (1999). Accordingly, pre-arrest delay was not a
viable defense to the first-degree home invasion charge against defendant.

        Under these circumstances, defense counsel’s performance did not fall below an
objective standard of reasonableness, and defendant’s plea was voluntarily and understandingly
tendered. Because defendant was not denied the effective assistance of counsel, his plea was
knowingly, voluntarily, and intelligently given. Accordingly, the trial court abused its discretion
in permitting him to withdraw it. See Haynes, 221 Mich App at 563 (finding the trial court
abused its discretion in granting the defendant’s motion to withdraw his guilty plea where the
defendant argued that he did not fully understand the ramifications of pleading guilty due to
ineffective assistance of counsel but the court determined his plea was made knowingly,


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voluntarily, or understandingly and there was no error in the plea proceeding to justify setting
aside defendant’s guilty plea).

        Last, as discussed above, defendant did not establish the type of prejudice necessary to
make dismissal due to the pre-arrest delay proper and the trial court, therefore, abused its
discretion in granting defendant’s motions to dismiss on that basis. See Adams, 232 Mich App at
138 (finding where the defendant failed to establish actual and substantial prejudice resulting
from the pre-arrest delay, “the trial court abused its discretion in granting [the] defendants’
motions to dismiss on the basis of prejudicial pre-arrest delay”).

       Reversed.

                                                           /s/ William B. Murphy
                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Mark T. Boonstra




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