Opinion
Docket No. 69044.
Decided October 25, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Michael J. Berezowsky, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
Defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and to resisting and obstructing a police officer, MCL 750.479; MSA 28.747. Defendant was sentenced to imprisonment for two concurrent terms of 5 to 15 years and 16 months to 2 years, and he appeals as of right.
Defendant argues that the evidence presented at his preliminary examination was insufficient to support binding him over for trial on the breaking and entering charge. Defendant points to certain dicta in People v Alvin Johnson, 396 Mich. 424, 444; 240 N.W.2d 729 (1976), and argues that his plea did not waive his right to raise this issue. Several panels of this Court have declined to follow the dicta from Alvin Johnson at issue. See, for example, People v Hill, 86 Mich. App. 706, 709-712; 273 N.W.2d 532 (1978), People v Pittinger, 105 Mich. App. 736, 740; 307 N.W.2d 715 (1981), and People v Jones, 111 Mich. App. 465; 314 N.W.2d 654 (1981).
Here, however, we need not decide whether the defendant's guilty plea waived any deficiency in the proofs at preliminary examination because defendant failed to preserve this issue for appellate review by a motion to quash the information. See People v McIntyre, 74 Mich. App. 661; 254 N.W.2d 603 (1977), and People v Hill, supra, pp 712-713. A motion to quash the information is necessary to preserve this issue for appellate review without regard to whether defendant pled guilty or was convicted after a trial. See People v Willis, 1 Mich. App. 428, 430-431; 136 N.W.2d 723 (1965), People v Sparks, 53 Mich. App. 452, 454; 220 N.W.2d 153 (1974), People v McKinney, 65 Mich. App. 131, 134; 237 N.W.2d 215 (1975), and People v Buschard, 109 Mich. App. 306, 319; 311 N.W.2d 759 (1981).
Appellate courts have the power to prevent fundamental injustice by considering manifest and serious errors not properly preserved for appellate review. People v Dorrikas, 354 Mich. 303, 316; 92 N.W.2d 305 (1958). However, we have been unable to find a single decision in which that power was exercised to consider a claim that the evidence at the preliminary examination was insufficient. Because a factual basis ample to support the plea to breaking and entering was elicited from defendant at the plea-taking proceeding, any deficiency in the evidence presented at the preliminary examination presents no manifest injustice.
Affirmed.