                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     March 22, 2018
               Plaintiff-Appellee,                                   9:00 a.m.

v                                                                    No. 336467
                                                                     St. Clair Circuit Court
DANA LYNN COOK,                                                      LC No. 16-001652-FH

               Defendant-Appellant.


Before: MURRAY, P.J., and CAVANAGH and FORT HOOD, JJ.

MURRAY, P.J.

                                       I. INTRODUCTION

        This matter is before the Court on remand from our Supreme Court, which directed this
Court to consider, as on leave granted, “the following issues: (1) whether the defendant’s plea
was conditional and reserved her right to appeal, (2) whether the defendant waived appeal of the
trial court’s decision denying her an evidentiary hearing under Section 8 of the Michigan
Medical Marihuana Act [(MMMA)], MCL 333.26421 et seq., if her guilty plea was not
conditional, and (3) if the defendant has preserved her right to appeal, whether the trial court
erred in denying defendant a Section 8 evidentiary hearing.” People v Cook, 501 Mich 857, 858
(2017). We affirm defendant’s conviction and conclude that (1) defendant’s plea was not
conditional, a fact that defendant admits, (2) defendant waived the right to appeal the trial court’s
denial of an evidentiary hearing under Section 8 of the statute, MCL 333.26428, and (3) we are
precluded from resolving the third issue on remand because, as noted under (2), the issue was
waived.

                                II. FACTS AND PROCEEDINGS

       After the St. Clair Circuit Court denied her motion seeking an evidentiary hearing
pursuant to Section 8, the affirmative defense provision of the MMMA, defendant pleaded guilty
to operating a motor vehicle with the presence of marijuana1 in her body, MCL 257.625(8).



1
 “Although the MMMA refers to ‘marihuana,’ this Court uses the more common spelling, i.e.,
‘marijuana,’ in its opinions. People v Carruthers, 301 Mich App 590, 593 n 1; 837 NW2d 16

                                                -1-
        The prosecutor initially charged defendant with one count of operating while intoxicated,
third offense, which is a felony in violation of MCL 257.625(1) and (9)(c), and one count of
misdemeanor possession of marijuana, MCL 333.7403(2)(d). Defendant, represented by
counsel, appeared for a plea proceeding on September 19, 2016. However, a plea agreement was
not reached, and the trial court was informed that a laboratory report was now available revealing
that defendant’s blood contained 14 nanograms per milliliter (ng/ml) of tetrahydrocannabinol
(THC). Defendant’s counsel explained that he intended to file a motion under Section 8 which
provides, in relevant part:

       (a) Except as provided in section 7(b), a patient and a patient’s primary caregiver,
       if any, may assert the medical purpose for using marihuana as a defense to any
       prosecution involving marihuana, and this defense shall be presumed valid where
       the evidence shows that:

       (1) A physician has stated that, in the physician’s professional opinion, after
       having completed a full assessment of the patient’s medical history and current
       medical condition made in the course of a bona fide physician-patient
       relationship, the patient is likely to receive therapeutic or palliative benefit from
       the medical use of marihuana to treat or alleviate the patient’s serious or
       debilitating medical condition or symptoms of the patient’s serious or debilitating
       medical condition;

       (2) The patient and the patient’s primary caregiver, if any, were collectively in
       possession of a quantity of marihuana that was not more than was reasonably
       necessary to ensure the uninterrupted availability of marihuana for the purpose of
       treating or alleviating the patient’s serious or debilitating medical condition or
       symptoms of the patient’s serious or debilitating medical condition; and

       (3) The patient and the patient’s primary caregiver, if any, were engaged in the
       acquisition, possession, cultivation, manufacture, use, delivery, transfer, or
       transportation of marihuana or paraphernalia relating to the use of marihuana to
       treat or alleviate the patient’s serious or debilitating medical condition or
       symptoms of the patient’s serious or debilitating medical condition.

       (b) A person may assert the medical purpose for using marihuana in a motion to
       dismiss, and the charges shall be dismissed following an evidentiary hearing
       where the person shows the elements listed in subsection (a). [MCL 333.26428.]

According to the prosecution, Section 7(b)(4) of the MMMA, MCL 333.26427(b)(4), which is
excepted from the defenses set out in Section 8, does not permit anyone to operate a motor
vehicle while “under the influence of marihuana.” As a result, the prosecutor argued that the




(2013). Therefore, except when directly quoting a statute, we will use the more common
spelling in this opinion.” People v Bylsma, 315 Mich App 363, 365 n 1; 889 NW2d 729 (2016).

                                               -2-
Section 8 defense was only applicable to Count II of the information, the misdemeanor
possession charge.

        Although defense counsel agreed with this position, he nonetheless explained that
without the Section 8 defense, the prosecutor could prove the felony charge by simply showing
that defendant had any amount of marijuana in her body while she was driving. The trial court
determined that it would not hold a Section 8 hearing with regard to the charge of operating
while intoxicated, but would hold such a hearing with regard to the misdemeanor possession
charge.

        The day after this hearing, the prosecutor filed an amended information, replacing the
first charge of operating while intoxicated with a charge of operating a vehicle with the presence
of a controlled substance in her body, third offense, in violation of MCL 257.625(8) and (9)(c),
and left the second charge of possession of marijuana unchanged.

        Defendant subsequently filed a motion requesting an evidentiary hearing so that she
could prove her Section 8 defense to both charges. Defendant argued that the Section 8 defense
applied to any criminal charge involving marijuana, and that the defense was applicable
regardless of whether she had a valid patient card at the time of the offense. Defendant agreed
that the defense was subject to MCL 333.26427(b)(4), and that under MCL 333.26427(b)(4), the
MMMA does not permit anyone to “[o]perate, navigate, or be in actual physical control of any
motor vehicle . . . while under the influence of marihuana.” Thus, according to defendant, the
purpose of raising the defense was to heighten what the prosecutor would have to prove.
Defendant explained that if she successfully proved her Section 8 defense, it would be
insufficient for the prosecutor to prove that she had any amount of marijuana in her body while
driving, as is contemplated by MCL 257.625(8). Rather, the prosecutor could only obtain a
conviction by showing that defendant was under the influence of marijuana while driving.

        The prosecutor argued that People v Koon, 494 Mich 1; 832 NW2d 724 (2013), was
inapplicable because the defendant in Koon was a registered patient under the MMMA, while
defendant here had not acted in conformity with the MMMA and, thus, could not raise a Section
8 defense. The prosecutor further argued that the trial court could conclude from the preliminary
examination transcript that defendant was under the influence of marijuana while driving and,
thus, was not entitled to a Section 8 defense or hearing on the issue.

        The trial court denied defendant’s motion. Thereafter, the parties and the trial court
reconvened for an on-the-record hearing in chambers. After lengthy discussions about stays,
jury instructions, and other matters, the trial court explained that the Section 8 defense was still
unavailable to defendant, and that it was denying “the right to present [this] affirmative defense.”
And because the trial court was denying defendant the ability to present this defense, the court
stated that it would not stay the proceedings and the matter would proceed to trial that day.

        After counsel discussed the matter with defendant, the parties reconvened about an hour
later. The prosecutor explained:

       My understanding is Ms. Cook is going to plead guilty to operating with the
       presence of a controlled substance third offense which is Count 1, which has a
       maximum penalty of up to five years. We would dismiss Count 3, the possession
                                                -3-
       of marijuana. I did mention that Ms. Cook has obviously with, with a plea it
       would be an application for leave to appeal. I don’t have an objection if the Court
       puts the sentencing out for a period of time for that application [for] leave.

Defense counsel agreed that this was “a correct recitation,” and stated that his “understanding is
that today’s plea will follow Defendant’s application for leave to appeal and that a sentence will
not be or at least a sentence will not be imposed until appellate proceedings have finished.”

        Defendant was sworn in by the trial court and testified that she understood the charge
against her and the possible penalty. She was informed of the rights she was waiving by entering
a plea, and then provided the factual basis for the plea, admitting that she drove a vehicle on June
17, 2016, after using marijuana, and that she had several prior convictions for drunk driving.
The trial court accepted the plea, and on December 20, 2016, entered a judgment of conviction.

       We now turn to the issues put forth to us by the Supreme Court.

                                         III. ANALYSIS

       The dispositive issue to resolve is whether defendant waived her ability to challenge, on
appeal, the denial of a Section 8 defense by tendering an unconditional2 guilty plea. Precisely
what rights are waived by an unconditional guilty plea is a question of law that we review de
novo. People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). We hold that
by tendering an unconditional guilty plea, defendant waived her claimed Section 8 defense.

        More than three decades ago, in People v New, 427 Mich 482, 487-493; 398 NW2d 358
(1986), our Supreme Court discussed at length what, precisely, is waived by an unconditional
guilty plea:

               This Court has held, as a general rule, that a plea of guilty “waives all
       nonjurisdictional defects in the proceedings.” People v Alvin Johnson, 396 Mich
       424, 440; 240 NW2d 729 (1976), cert den sub nom Michigan v Johnson, 429 US
       951; 97 S Ct 370; 50 L Ed 2d 319 (1976), citing People v Ginther, 390 Mich 436,
       440; 212 NW2d 922 (1973). In Alvin Johnson, we addressed the effect of a plea
       of guilty on the constitutional defense of double jeopardy. Therein, we limited
       the broad scope of the plea-waiver rule, holding that a guilty plea does not waive
       defendant’s right to appeal from an adverse decision on his double jeopardy
       defense. [Johnson,] 396 Mich [at] 444-445. We set forth the following test to be
       used to distinguish between those rights or defenses which are waived by a plea of
       guilty and those rights or defenses which may be asserted despite a plea of guilty:

                      Certainly it is true that those rights which might provide a
               complete defense to a criminal prosecution, those which undercut
               the state’s interest in punishing the defendant, or the state’s


2
  As noted at the outset of this opinion, the parties agree that defendant did not enter a
conditional plea. The record and the law support that agreement.

                                                -4-
       authority or ability to proceed with the trial may never be waived
       by guilty plea. These rights are similar to the jurisdictional
       defenses in that their effect is that there should have been no trial
       at all. The test, although grounded in the constitution, is therefore
       a practical one. Thus, the defense of double jeopardy, those
       grounded in the due process clause, those relating to insufficient
       evidence to bind over at preliminary examination and failure to
       suppress illegally-obtained evidence without which the people
       could not proceed are other examples. Wherever it is found that
       the result of the right asserted would be to prevent the trial from
       taking place, we follow the lead of the United States Supreme
       Court and hold a guilty plea does not waive that right. [[Id. at] 444
       (emphasis added)].]

        The above-emphasized statement in Alvin Johnson was not only a
misreading of the previously cited federal authority, it also was not necessary to
the decision of that case, as defendant did not present any such claims. Hence, the
statement that the defense of the failure to suppress illegally obtained evidence
and the defense of insufficient evidence to bind over at the preliminary
examination are examples of claims which survive a guilty plea is obiter dictum.

        We next addressed the effect of a guilty plea on an appeal in the case of
People v White, 411 Mich 366; 308 NW2d 128 (1981). In White, this Court
unanimously held, in separate opinions, that the defense of entrapment was not
waived by a plea of guilty. [Id. at] 386-387, 399. The majority opinion stated
that the defense of entrapment “does not involve an assessment of guilt or
innocence, but rather expresses a policy that there should be no prosecution at
all.” [Id. at] 387. Entrapment was determined to be “like a jurisdictional defect.”
Id.

        Similarly, the well-reasoned separate opinion noted that if successful, the
entrapment defense provides “ ‘a complete defense to a criminal prosecution’ and
undercuts ‘the state’s interest in punishing the defendant’ and ‘authority or ability
to proceed with the trial.’ ” [Id. at] 393 (MOODY, J., concurring in part and
dissenting in part), quoting Alvin Johnson, 396 Mich [at] 444.

        Recently, this Court discussed the related issue of the validity of a
conditional plea of guilty in the case of People v Reid, 420 Mich 326; 362 NW2d
655 (1984). The defendants in Reid pled guilty, but reserved their right to appeal
a denial of their motions to suppress evidence obtained pursuant to a search
warrant. We held that a defendant may appeal from a denial of a Fourth
Amendment or a Const 1963, art 1, § 11 search and seizure claim where “the
defendant could not be prosecuted if his claim that a constitutional right against
unreasonable search and seizure was violated is sustained and the defendant, the
prosecutor, and the judge have agreed to the conditional plea.” [Reid,] 420 Mich
[at] 331-332.


                                         -5-
       Reid did not modify the essential holding of Alvin Johnson, but rather
provided a procedure (conditional guilty plea) in which a defendant may admit to
a criminal act but challenge the state’s ability to present its case against him
because of an alleged illegal search and seizure. See Reid, 420 Mich [at] 334-
335.

        Today, we hold that a defendant, after pleading guilty, may raise on appeal
only those defenses and rights which would preclude the state from obtaining a
valid conviction against the defendant. Such rights and defenses “reach beyond
the factual determination of defendant’s guilt and implicate the very authority of
the state to bring a defendant to trial . . . .” White, 411 Mich [at] 398 (MOODY, J.,
concurring in part and dissenting in part). In such cases, the state has no
legitimate interest in securing a conviction. On the other hand, where the defense
or right asserted by defendant relates solely to the capacity of the state to prove
defendant’s factual guilt, it is subsumed by defendant’s guilty plea.

       The rationale for this holding was aptly summarized by Justice MOODY:

                A literal interpretation of the language of Menna and
       Blackledge [v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628
       (1974)] might allow a defendant to preserve a wide variety of
       defenses in spite of his guilty plea. However, the spirit of those
       cases, and respect for the state’s interest in the finality of
       conviction and judicial economy as reflected in the guilty-plea
       procedure, undercuts the wisdom of such a construction. Further,
       the underlying rationale of the guilty plea in many cases is the
       notion of bargain and exchange. When a defendant pleads guilty
       he gives up a series of important rights, including the right to a jury
       trial, the right to confront accusers and present witnesses, and the
       right to remain silent. In exchange, he may be convicted of a
       lesser crime or receive a shorter sentence. Courts should be
       hesitant to allow a defendant to upset a bargain by which he
       knowingly and intelligently admitted his guilt.

               In light of these functions of the guilty plea in the criminal
       justice system, the distinction implicit in Menna and Blackledge
       and that underlying the “complete defense” language of Alvin
       Johnson would insulate only a narrow class of rights against a
       waiver by plea. Only those rights and defenses which reach
       beyond the factual determination of defendant’s guilt and implicate
       the very authority of the state to bring a defendant to trial are
       preserved. Examples include: the prohibition against double
       jeopardy, Menna; the right to challenge the constitutionality of the
       statute under which one is charged, Journigan v Duffy, 552 F2d
       283 (CA 9, 1977); the challenge that a charge is brought under an
       inapplicable statute, People v Beckner, 92 Mich App 166; 285
       NW2d 52 (1979). These defenses are “similar to the jurisdictional
       defenses,” Alvin Johnson, [396 Mich at] 444, in that they involve
                                         -6-
               the right of the government to prosecute the defendant in the first
               place. Such rights may never be waived.

                       In contrast, those rights which are subsumed in a guilty
               plea relate to a different aspect of governmental conduct in the
               criminal process. When a defendant pleads guilty, he waives his
               right to a trial. Therefore, he necessarily gives up all the rights and
               challenges associated with that trial. Thus, important safeguards
               relating to the capacity of the state to prove defendant’s factual
               guilt, and those regulating the prosecution’s conduct at trial are
               among those defendant waives when he pleads guilty. These
               rights, which essentially relate to the gathering and presentation of
               evidence, are lost even if a successful challenge would provide a
               “complete defense” by in effect rendering the state unable to
               continue with the prosecution. [[White,] 411 Mich [at] 397-399.]

        To summarize, the New Court held that “a criminal defendant may appeal from an
unconditional guilty plea or a plea of nolo contendere only where the claim on appeal 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,” but “[w]here the claim sought to be
appealed involves only the capacity of the state to prove defendant’s factual guilt, it is waived by
a plea of guilty or nolo contendere.” New, 427 Mich at 495-496. “Another phrasing of this
principle . . . is that ‘jurisdictional’ defenses are not waived by a plea of guilty.” People v
Lannom, 441 Mich 490, 493; 490 NW2d 396 (1992).3

        We now turn to whether Section 8 implicates the very authority of the state to bring
charges, or is instead a provision regarding the ability of the state to prove a defendant’s factual
guilt. In People v Hartwick, 498 Mich 192, 226-228; 870 NW2d 37 (2015), the Supreme Court
explained the nature of the Section 8 defense:

              Section 8(a) of the MMMA provides any patient or primary caregiver—
       regardless of registration with the state—with the ability to assert an affirmative
       defense to a marijuana-related offense. The affirmative defense “shall be
       presumed valid where the evidence shows”:


3
   New’s construct is still controlling. See, e.g., People v Horton, 500 Mich 1034 (2017)
(remanding a case to this Court to determine whether a “speedy-trial claim is ‘nonjurisdictional’
as defined by People v New, 427 Mich 482 (1986)”); People v Aceval, 282 Mich App 379, 385 n
3, 389 n 4; 764 NW2d 285 (2009) (citing New to determine whether certain claims were waived
by the entry of a guilty plea); People v Johnson, 207 Mich App 263, 264-265; 523 NW2d 655
(1994) (citing New for the proposition that “[a] plea of guilty waives all defenses and rights that
relate solely to the capacity of the state to prove the defendant’s factual guilt” but “defenses and
rights raised on appeal that would preclude the state from obtaining a valid conviction against the
defendant, i.e., that implicate the very authority of the state to bring a defendant to trial, are not
waived by a guilty plea”).

                                                 -7-
                       (1) A physician has stated that, in the physician’s
               professional opinion, after having completed a full assessment of
               the patient’s medical history and current medical condition made
               in the course of a bona fide physician-patient relationship, the
               patient is likely to receive therapeutic or palliative benefit from the
               medical use of marihuana to treat or alleviate the patient’s serious
               or debilitating medical condition or symptoms of the patient’s
               serious or debilitating medical condition;

                       (2) The patient and the patient’s primary caregiver, if any,
               were collectively in possession of a quantity of marihuana that was
               not more than was reasonably necessary to ensure the
               uninterrupted availability of marihuana for the purpose of treating
               or alleviating the patient’s serious or debilitating medical condition
               or symptoms of the patient’s serious or debilitating medical
               condition; and

                       (3) The patient and the patient’s primary caregiver, if any,
               were engaged in the acquisition, possession, cultivation,
               manufacture, use, delivery, transfer, or transportation of marihuana
               or paraphernalia relating to the use of marihuana to treat or
               alleviate the patient’s serious or debilitating medical condition or
               symptoms of the patient’s serious or debilitating medical
               condition. [MCL 333.26428(a)(1) to (3).]

               In [People v ]Kolanek, [491 Mich 382, 416; 817 NW2d 528 (2012),] we
       determined that if a defendant establishes these elements and no question of fact
       exists regarding these elements, then the defendant is entitled to dismissal of the
       criminal charges. We also clarified that if questions of fact exist, then “dismissal
       of the charges is not appropriate and the defense must be submitted to the jury.”
       [Id.] Additionally, if a defendant has not presented prima facie evidence of each
       element of §8 by “present[ing] evidence from which a reasonable jury could
       conclude that the defendant satisfied the elements of the §8 affirmative defense, . .
       . then the circuit court must deny the motion to dismiss the charges,” and “the
       defendant is not permitted to present the § 8 defense to the jury.” [Id.] [Citation
       omitted.]

        Although defendant did not (and cannot) raise it because she did not possess a valid
registry card at the time of the act giving rise to her conviction, to provide additional context, the
MMMA also provides immunity in certain cases under Section 4 of the act, MCL 333.26424.
Pursuant to MCL 333.26424(a):

               A qualifying patient who has been issued and possesses a registry
       identification card is not subject to arrest, prosecution, or penalty in any manner,
       or denied any right or privilege, including, but not limited to, civil penalty or
       disciplinary action by a business or occupational or professional licensing board
       or bureau, for the medical use of marihuana in accordance with this act, provided
       that the qualifying patient possesses an amount of marihuana that does not exceed
                                                 -8-
       a combined total of 2.5 ounces of usable marihuana and usable marihuana
       equivalents, and, if the qualifying patient has not specified that a primary
       caregiver will be allowed under state law to cultivate marihuana for the qualifying
       patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental
       amount of seeds, stalks, and unusable roots shall also be allowed under state law
       and shall not be included in this amount. The privilege from arrest under this
       subsection applies only if the qualifying patient presents both his or her registry
       identification card and a valid driver license or government-issued identification
       card that bears a photographic image of the qualifying patient.

        Section 4 provides qualifying patients who hold registry cards “broad immunity from
criminal prosecution, civil penalties, and disciplinary actions[.]” Kolanek, 491 Mich at 394-395.
In contrast, Section 8 “provides an affirmative defense to charges involving marijuana for its
medical use[.]” Id. at 396. “Sections 4 and 8 provide separate and distinct protections and
require different showings[.]” Id. at 401. Unlike immunity under Section 4, the affirmative
defense provided by Section 8 “is available to unregistered patients.” Id. at 402. “The stricter
requirements of § 4 are intended to encourage patients to register with the state and comply with
the act in order to avoid arrest and the initiation of charges and obtain protection for other rights
and privileges. If registered patients choose not to abide by the stricter requirements of § 4, they
will not be able to claim this broad immunity, but will be forced to assert the affirmative defense
under § 8, just like unregistered patients.” Id. at 403.

        While Section 4 immunity is not at issue, the comparison of Section 4 and Section 8 of
the MMMA helps draw a line between what is waived and what is not waived by an
unconditional guilty plea. An unconditional guilty plea does not waive claims that “implicate[]
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. That is precisely
what is accomplished by Section 4 of the MMMA, as it provides absolute immunity from
prosecution to those individuals that can establish the required elements of the statute. In other
words, if a defendant is entitled to immunity under Section 4 of the MMMA, the state simply
cannot bring charges against the defendant “for the medical use of marihuana in accordance
with” the MMMA. MCL 333.26424. Because Section 4 immunity “implicates the very
authority of the state to bring the defendant to trial,” it is not the type of defense that is waived
by an unconditional guilty plea. New, 427 Mich at 495.

       But the affirmative defense provided by Section 8 of the MMMA is a different creature;
one that is “separate and distinct” from immunity under Section 4. Kolanek, 491 Mich at 401. It
is an affirmative defense to charges that the prosecution has the right to bring against a
defendant. And as the Supreme Court explained in Hartwick, 498 Mich at 227, and Kolanek,
491 Mich at 416, if a factual dispute is presented to the trial court at an evidentiary hearing
regarding a Section 8 defense, the dispute must be resolved by the jury at the defendant’s trial.
Accordingly, while a prosecutor has no right to prosecute an individual entitled to immunity
under Section 4 of the MMMA in the first instance, defendants raising a Section 8 defense must
ultimately be able to prove their factual entitlement to that defense at trial. Thus, a Section 8
defense does not implicate the right of a prosecutor to bring a defendant to trial in the first
instance, as the defense specifically contemplates the matter potentially proceeding to a trial,
where the defense will be weighed by the jury. A guilty plea waives “all the rights and

                                                -9-
challenges associated with that trial.” New, 427 Mich at 492 (quotation marks and citation
omitted). Thus, by tendering an unconditional guilty plea, defendant waived the Section 8
defense and cannot raise the denial of the defense on appeal.4

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Karen M. Fort Hood




4
  As noted at the outset of this opinion, because we have concluded that defendant waived the
right to appeal the denial of a Section 8 defense, we need not address the third issue set forth in
the Supreme Court’s remand order, which was conditioned on the outcome of the waiver issue.

                                               -10-
