Michigan Supreme Court 

# Order

Lansing, Michigan

March 9, 2007 Clifford W. Taylor,
Chief Justice

131583 Michael F. Cavanagh
Elizabeth A. Weaver PEOPLE OF THE STATE OF MICHIGAN, Marilyn Kelly Plaintiff-Appellee, Maura D. Corrigan Robert P. Young, Jr. SC: 131583 Stephen J. Markman, v COA: 269205 Justices Oakland CC: 1995-142121-FH, KUMANI K. REGAINS, 1 995-142122-FH, 1 995-142123-FH, Defendant-Appellant. 1 995-142124-FH, 1 995-142125-FH, 1995-142126-FH

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On order of the Court, th e application for leave to ap peal the May 12, 2006 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

C ORRIGAN , J., concurs and states as follows:

I concur with the order deny ing leave to appeal. I write separatel y to point out that by unconditionally pleading gu ilty to the charge of probati on violation, defendant waived any claim that the poli ce did not diligen tly arrest him for that violation. 1

1 In People v Ortman , 209 Mich App 251, 254 (1995), the Court of Appeals explained the origins of the “due diligence” rule:

In People v Diamond , 59 Mich App 581, 587; 22 9 NW2d 857 (1975), this
Court first announced the rule that once a warrant for probation violation has been issued, the probation author ities must exercise due diligence in executing it. If there is a de termination that the prob ation authorities did not act with reasonable dispatch under all the circumstances, then there is a waiver of the probation violation. Id. , p 588. This rule has been consistently followed by this Court. People v Gunner , 61 Mich App 569, 570; 233 NW2d 87 (1975); People v Henry , 66 Mich App 394, 397; 239 NW2d 384 (1976); People v Miller , 77 Mich App 381, 384; 258 NW2d 235 (1977); People v Hanson , 178 Mich App 507, 510; 444 NW2d 175 (1989); People v Ritter , 186 Mich App 701, 709; 464 NW2d 919 (1991).

The issue in this case is not the validity of the “due diligence” rule, but whether
defendant waived the due d iligence argument by pleading gu ilty. I offer no opinion on the validity of the “due d iligence” rule or the correctne ss of the Court of Appeals opinions adopting the rule , but will assume for purposes of th is case that the rule is valid._______________________________________ __ 2

In People v New , 427 Mich 482, 491 (1986), this Court held that a defendant who pleads guilty waives all claims except those that implicate the very authority of the state to bring the defendant to trial. In People v Hanson , 178 Mich App 507, 509-510 (Maher, J.), 511 (Reilly, J. [concurring in the resul t only]) (1989), a divi ded Court of Appeals panel, citing New, supra , held that a defendant does no t waive the due diligence issue by pleading guilty. In so holding, the Hanson lead opinion analogized due diligence claims to speedy trial claims and held that such claims “implicate th e very authority of the state to bring [a defendant] to trial.” Hanson, supra at 509. But because Hanson was issued before November 1, 1990 , it is not binding authority. MCR 7.215(J)(1). Subsequent binding Court of Appeal s decisions imply that Hanson was incorrectly decided. In People v Irwin , 192 Mich App 216, 218 (1991), th e Court of Appeals held that an unconditional guilty plea waives review of a claim that the 18 0-day rule was violated. Thus, under current law in the Court of Appeals, speedy tria l issues no longer implicate the state’s authority to bring a defendant to tria l within the meaning of New, supra . As
the Hanson panel stated, due diligence claims fal l into this category of speedy trial claims. Therefore, by unconditionally plea ding guilty of a pr obation violation, a defendant waives any issue that law en forcement did not exerci se due diligence in executing the probatio n violation warrant.

K ELLY , J., dissents and states as follows:

I would remand this case to the Court of Appeals for cons ideration as on leave granted. Defendant’s positio n has support in the only published Court of Appeals decision to directly addre ss the issue presented. People v Hanson , 178 Mich App 507 (1989). Also, we have not had the opportun ity for a full briefing or oral argument. Under those circumstances, a definitive statemen t rejecting defendant’s claim seems
unwise.

t0306 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 9, 2007

Clerk