People v. Ricky Smith

M. F. Cavanagh, P. J.

(concurring in part; dissenting in part). With the exception of his remarks concerning qualified (or conditional) pleas, I concur in my Brother Bronson’s opinion. I write separately only because I am unpersuaded by the arguments made in behalf of a refusal to enforce such pleas.

Among those arguments is the contention that conditional pleas are contrary to sound policy because they force the courts to consider constitutional issues. It is fundamental law that a court will avoid decision of a constitutional issue if a case can be resolved on a nonconstitutional ground. Neese v Southern R Co, 350 US 77 ; 76 S Ct 131 ; 100 L Ed 60 (1955). However, this is only a rule for determining which of the issues raised by a case before the court should be decided. It is not a rule to keep cases from coming before the court. This law does not support or imply a rule of criminal procedure which makes it difficult for. defendants to present a constitutional issue where that is the sole dispositive issue in the case.

Moreover, the trial court will have been "forced” to decide the question anyway. A qualified plea simply expedites the appeal of this decision by saving a possibly needless, expensive and time-consuming trial.

A second argument made against qualified pleas is that they prevent this Court from finding harm *49 less error in the denial of a motion to suppress. This argument merits careful analysis.

When this Court makes a finding of harmless error in the admission of evidence at trial it second-guesses the trier of fact to determine how the trier would have decided the case without the admission of the challenged evidence. In a qualified plea situation, if the lower court’s ruling on thé suppression motion is found to be error and the case remanded for further proceedings, it will ultimately be the trier of fact itself who determines whether the prosecution’s case, without the suppressed evidence, proves defendant’s guilt beyond a reasonable doubt. I find it preferable that this decision be made by the trier of fact, who sees the witnesses first-hand, rather than by an appellate court, which sees only the record and exhibits. I also think it more consistent with the right to trial by jury that the factfinder make the ultimate finding on the weight of the properly admitted evidence. I therefore see no disadvantage in eliminating the appellate court’s power to find harmless error here.

A third objection raised to conditional pleas is the seeming illogic and inconsistency in admitting one’s guilt with a plea of guilty and at the same time reserving a right to appeal, which is equated with an assertion of innocence. However, a conditional plea is not quite the same thing as a guilty plea. A conditional plea expresses the defendant’s qualified will to plead guilty only if a ruling adverse to him is affirmed on appeal. In such a choice there is more pragmatism and realism than illogic and inconsistency.

The probable result of allowing qualified pleas is an increase in appeals raising constitutional issues, and a decrease in trials where the prosecu *50 tion builds an apparently overwhelming case in part on evidence of questioned admissibility. If so, then a rule allowing qualified pleas portends a trade-off in the workload of trial and appellate courts. If we as a Court elect not to make this trade, it should be, at least in part, because of its poor economies, and not on the grounds presently advanced by the rule’s critics. For the proof of these economies we should look, not to presumptions and suppositions, but to the experience of our sister states who recognize qualified pleas.

We should, in addition, look closely at what is proposed to be traded. Where the defendant must go to trial to preserve an issue for appeal, and does so for this purpose only, the trial itself resolves no genuinely contested questions. It is wasted work on nonissues, with the real issue to be decided only on the subsequent appeal. There will, however, be some defendants who plead guilty and waive the only arguably meritorious question in the case in order to secure the benefits of a favorable plea bargain. These pleas save the appellate courts work. In short, the system saves the appellate courts work on the real questions at the cost of favorable plea bargains for defendants and pointless work for trial courts.

Where a conditional plea is taken the work and expense of trying nonissues is saved. However, the appellate courts will have the added work of deciding the issues which defendants do contest and on the outcome of which their pleas are conditioned.

To this writer, there is something preferable in an adjudicatory system which allocates its energies to the decision of contested questions rather than formal exercises.

I agree that a uniform policy should be made either by court rule or Supreme Court decision. *51 However, I do not agree that this Court, in the interim, should create by judicial opinion a uniform policy of not enforcing qualified pleas. Where the defendant and the prosecutor enter into a qualified plea, Santobello v New York, 404 US 257 ; 92 S Ct 495 ; 30 L Ed 2d 427 (1971), would seem to forbid our ignoring the qualification and treating the alleged errors as waived. The only other alternative to enforcing the plea and considering the issues would be to set the plea aside and remand for taking an unqualified plea, or for trial, in the parties’ option. However, for the same considerations of judicial economy which move my Brother Bkonson to reach the merits here, I would prefer to enforce qualified pleas.

M. J. Kelly, J., concurs with M. F. Cavanagh, P. J.