Defendant appeals by leave granted from an order denying his motion to quash an information charging him with operating a motor vehicle while being under the influence of intoxicating liquor (ouil) or while having an unlawful blood alcohol content (ubal), third offense (ouil 3d), MCL 257.625(1) and MCL 257.625(8)(c). We affirm.
The police arrested defendant in Oakland County in January 2001 for operating under the influence of alcohol. Defendant was charged with ouil 3d because of two prior convictions in Wayne County, one in the 20th District Court in 1995, for impaired driving, and one in the 21st District Court in 1996, for UBAL. Defendant waived his right to a preliminary examination in the district court and was bound over for trial in the Oakland Circuit Court.
Defendant then filed an emergency motion in Wayne County to withdraw the guilty plea entered in the 20th District Court in the 1995 impairеd driving case. Defendant claims in his brief filed with this Court that his motion was based on the deprivation of counsel. The district court granted the motion in an order dated February 14, 2002. 1 Defendant then filed a motion in the Oakland Circuit Court to quash the information in the instant case, аrguing that he could not be charged with ouil 3d because he now had only one prior conviction for enhancement purposes under MCL 257.625(23).
The trial court denied defendant’s motion to quash, reasoning, in part, that the order setting aside the 1995 impaired driving cоnviction was invalid because defendant moved to set aside that conviction years after being sentenced and only after being charged with ouil 3d.
On appeal, defendant contends that the trial court erred in denying the motion to quash. This Court reviews a trial court’s decision with regard to a motion to quash an information for an abuse of discretion.
People v Hamblin,
MCR 6.610(E)(7) sets forth the time limit for challenging a guilty plea in district court. It states, in part:
The following provisions apply where a defendant seeks to challenge the plea.
(a) A defendant may not challenge a plea on appeal unless the defendant moved in the trial court to withdraw the plea for noncompliance with these rules. Such a mоtion may be made either before or after sentence has been imposed. After imposition of sentence, the defendant may file a motion to withdraw theplea within the time for filing an application for leave to appeal undеr MCR 7.103(B)(6).
MCR 7.103(B)(6) states that a “delayed application [for leave to appeal in the circuit court] may not be filed more tha[n] 6 months after entry of the order or judgment on the merits.”
Defendant contends that the six-month deadline for challenging a district court guilty plea does not apply to his 1995 conviction because the amended rules setting forth this deadline — MCR 6.610(E)(7)(a) and MCR 7.103(B)(6) — did not take effect until September 1, 2000. We agree that defendant was not required to challenge his guilty plea within six months of the entry of the 1995 cоnviction, because the rules in question had not been amended at that point.
However, the staff comment to the September 2000 amendment of MCR 6.610 states:
The amendment of MCR 6.610(E)(7) [effective September 1, 2000] establishes time limits for moving to withdraw pleas in district cоurt criminal cases, comparable to those in circuit court cases. See MCR 6.311. New MCR 6.610(H) sets time limits for filing a motion for a new trial in district court criminal cases.
The amendment of MCR 7.103(B)(6) [effective September 1, 2000] places a 6-month time limit on applicаtions for leave to appeal to circuit court, corresponding to the 12-month limit applicable in appeals to the Court of Appeals. See MCR 7.205(F)(3). As to judgments entered before the effective date of the amendment, the 6-month period specified in MCR 7.103(B)(6) begins on the effective date, September 1, 2000. [Emphasis added.]
The staff comment to the 2000 amendment of MCR 7.103 reiterates:
The amendment of MCR 7.103(B)(6) [effective September 1, 2000] places a 6-month time limit on applications for leave to aрpeal to circuit court, corresponding to the 12-month limit applicable in appeals to the Court of Appeals. See MCR 7.205(F)(3). As to judgments entered before the effective date of the amendment, the 6-month period specified in MCR 7.103(B)(6) begins оn the effective date, September 1, 2000. [Emphasis added.]
These staff comments make clear that defendant had six months from September 1, 2000, to challenge his 1995 guilty plea. We acknowledge that staff comments are not part of the text of a court rule and that their interpretation of the rules is not binding.
People v Petit,
A particularly instructive case is
People v Ward,
The Supreme Court held that the district court abused its discretion in setting aside the defendant’s OUIL 2d conviction. Id. at 611-612. The Court noted the following:
[BJecause the validity of the plea was contested merely out of subsequent sentencing concerns, defendant’s ability to directly attack his ouil 2d conviction was foreclosed when he was arrested and charged with ouil 3d.
* * *
. . . Defendant has never claimed actual innocence, and the principal motivation behind the motion is plainly extrication from the sentencing implications of ouil 3d. [Id. at 612-614.]
The Court further noted:
Siimlarly, where an appeal to the Court of Appeals is delayed by more thаn twelve months after judgment, appeal is foreclosed and defendant is limited to the post-appeal relief provisions under MCR 6.501 et seq. MCR 7.205(F)(3). In essence, a long delayed direct appeal is treated as collateral. No principle countenances giving a defendant in district court greater freedom to attack a plea-based conviction than our rules allow for felony convictions. [Ward, supra at 614 (emphasis added).]
Finally, the Court noted, “In view of the ambiguity in the rules regarding delayed appeals, we are today, by separate order, publishing for comment proposed amendments of MCR 6.610 and 7.103 to clarify the time limits for challenging plea-based convictions in district court.” Ward, supra at 614-615.
The amendments of MCR 6.610(E)(7)(a) and MCR 7.103(B)(6) make clear the Supreme Court’s intention to unеquivocally foreclose appeals of district court guilty pleas brought over six months after entry of the judgment. Moreover, the interplay of Ward, MCR 6.610(E)(7)(a), and'MCR 7.103(B)(6) convinces us that the staff comment to the September 2000 amendment of MCR 6.610(E)(7)(a) and the staff commеnt to the 2000 amendment of MCR 7.103(B)(6) are entirely correct: A defendant who pleaded guilty to an offense in district court before the effective date of the amendments had only six months from September 1, 2000, to challenge the plea. Any other interpretаtion would contravene the Ward Court’s strong disavowal of delayed challenges to guilty pleas and the Court’s corresponding intent to limit the period for challenging a plea-based conviction. Defendant missed the six-month deadline in the instant case, and therefore the district court erroneously allowed defendant to withdraw his guilty plea in the 1995 case.
Defendant contends, however, that we are not at liberty to invalidate the district court’s ruling because the prosecutor in the 1995 case did not appeal that ruling. He further argues that the Oakland County prosecutor in this case had no jurisdiction to challenge the ruling concerning the 1995 conviction, because the conviction and ruling occurred in Wayne County. We disagree, because the issue invоlved is one of jurisdiction.
“The term jurisdiction refers to the power of a court to act and the authority a court has to hear and determine a case.”
In re Waite,
Defendant contends that applying the six-month time limit to his situation would violate the constitutional prohibition of ex post facto laws. See US Const, art I, § 10, cl 1; US Const, art I, § 9, cl 3; and Const 1963, art 1, § 10. However, defendant’s treatment of this issue is so cursory that we need not address it. See, generally,
People v
Leonard,
The trial court correctly concluded that defendant had two prior convictions for purposes of MCL 257.625(23). Accordingly, the court properly rejected defendant’s motion to quash the OUIL 3d information. 3
Notes
The order does not set forth the district court’s reasons for setting aside the 1995 conviction.
We note for the sake of completeness that the district court erred in setting aside the 1995 conviction under the explicit language from Ward, even disregarding the amended court rules at issue here. The Ward Court noted the fourteen-month delay in the defendant’s challenge to his plea and noted that the challenge occurred only after the defendant was charged with ouil 3d. Ward, supra at 612. It explicitly stated that the defendant’s challenge was “foreclosed” because it resulted from subsequent sentencing concerns. Id. The instant case presents facts analogous to those at issue in Ward. Indeed, defendant waited over five years to challenge his guilty plea, and he did so only after being charged with ouil 3d. Therefore, a challenge by the prosecutor to the district court’s order of dismissal in defendant’s 1995 case would have been meritorious under Ward, even disregarding the amendments of MCR 6.610(E)(7)(a) and MCR 7.103(B)(6).
We note that under MCR 6.610(E)(2), a district court conviction obtained by guilty plea mаy not be used to enhance a later sentence or charge “unless a defendant who is entitled to appointed counsel is represented by an attorney or waives the right to an attorney.” However, if the conviction did not actually result in imprisonment, thе conviction may be used for enhancement purposes regardless of the involvement of counsel. See, generally, People v Reichenbach, 459 Mich 109, 120; 587 NW2d 1 (1998). The record before us sheds little light on the situation surrounding defendant’s 1995 conviction. However, because defendant did not raise the issue of MCR 6.610(E)(2) either below or on appeal to this Court, we assume that it does not apply to his situation (i.e., that he either was not entitled to appointed counsel at the time of the 1995 plea or that his conviction did not result in actual incarceration).