People v. Asquini, Docket No. 198907

• Decision Date: 06 February 1998
• Docket Number: Docket No. 198907
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Allan ASQUINI, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 142

577 N.W.2d 142

227 Mich.App. 702

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Allan ASQUINI, Defendant-Appellee.

Docket No. 198907.

Court of Appeals of Michigan.

Submitted Jan. 6, 1998, at Lansing.

Decided Feb. 6, 1998, at 9:10 a.m.

Released for Publication April 30, 1998.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Solicitor Gen., David Gorcyca, Prosecuting Atty., and Marilyn J. Day, Asst. Prosecuting Atty., for People.

Arnold J. Shifman, Royal Oak, for Defendant-Appellee.

Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.

WHITBECK, Judge.

The prosecution appeals by leave granted the circuit court's order denying its application for leave to appeal a district court's order. The district court's order granted defendant's motion to quash the charge of operating a motor vehicle while under the influence of intoxicating liquor or while having an unlawful blood alcohol level, third offense (OUIL/UBAL-3rd), M.C.L. § 257.625(1), (7)(d); M.S.A. § 9.2325(1), (7)(d). We reverse and remand to the district court for further proceedings consistent with this opinion.

Defendant Michael Asquini pleaded guilty of OUIL/UBAL in August 1990 and to OUIL/UBAL-2nd in October 1991. Before the preliminary examination of the charge of OUIL/UBAL-3rd in August 1996, defendant moved to quash the information on the ground that the prior two OUIL/UBAL convictions were constitutionally infirm and could not be used to enhance the severity of the present charge to a charge of OUIL/UBAL-3rd. Defendant based his motion on a claim that he had not been represented by counsel, had not been properly advised of the right to counsel, and had not knowingly and intelligently waived the right to counsel The district court granted the motion to quash.

At the outset, we note that the issue before us is not defendant's guilt or innocence with respect to the offenses, commonly known as drunk driving, with which he has been charged over the years. With respect to his two previous convictions, defendant pleaded guilty, apparently in accordance with plea bargaining agreements. With respect to the current charge of OUIL/UBAL-3rd, the issue, again, is not defendant's guilt or innocence, but rather his collateral attack on his prior two convictions in connection with his attempt to prevent the alleged drunk driving in this case from being charged as OUIL/UBAL-3rd. At the time of defendant's alleged OUIL/UBAL-3rd offense in 1996, M.C.L. § 257.625(7)(d); M.S.A. § 9.2325(7)(d) ¹ provided:

If the violation occurs within 10 years of 2 or more prior convictions, the person is guilty of a felony and shall be sentenced to imprisonment for not less than 1 year or more than 5 years or a fine of not less than $500.00 or more than $5,000.00, or both. A term of imprisonment imposed under this subdivision shall not be suspended.

The intent of the Legislature in enacting this provision could not have been clearer: it was to subject repeat OUIL/UBAL offenders to enhanced punishment. Defendant seeks to avoid this enhanced punishment--in the event that he is found guilty or again pleads guilty of the offense--by collaterally attacking his two prior plea-based convictions on constitutional grounds.

As stated by the Michigan Supreme Court in People v. Ingram, 439 Mich. 288, 291, 484 N.W.2d 241 (1992), collateral attacks, as opposed to direct appeals, require consideration of finality and of administrative consequences. Indeed, as held by the Court:

Federal and state courts have consistently found that considerations of finality and administrative consequences must become part of the process with which we assure the achievement of proceedings that are consistent with the rudimentary demands of fair procedure. Such considerations have been found to be of particular significance in cases where courts have been confronted with the concerns surrounding the procedural issue of collateral attack of plea-based convictions. We agree and therefore hold that failure of a plea-taking court to adhere to applicable plea-taking requirements during the plea proceeding does not provide a defendant the opportunity to challenge by collateral attack. The validity of such a plea, where the defendant was represented by an attorney when entering the plea or when the defendant intelligently waived the right to counsel, including the right to court-appointed counsel if indigent, is unassailable. [Id. at 293-295, 484 N.W.2d 241 (emphasis supplied).]

Thus, the only issue before us is whether defendant intelligently waived the right to counsel in the course of his two prior plea-based convictions. ²

I. Defendant's First OUIL/UBAL Conviction

MCR 6.610(E) provides in pertinent part:

Before accepting a plea of guilty or no contest the court shall in all cases comply with this rule.

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(2) The court shall inform the defendant of the right to the assistance of an attorney. If

(a) the offense charged is punishable by over 92 days in jail.

(b) the offense charged requires a minimum jail sentence; or

(c) the court makes a determination that it may send the defendant to jail,

the court shall inform the defendant that if the defendant is indigent he or she has the right to an appointed attorney.

A subsequent charge or sentence may not be enhanced because of this conviction unless a defendant is represented by an attorney or he or she waives the right to an appointed attorney. [Emphasis supplied.]

However, in People v. Reichenbach, 224 Mich.App. 186, 188-189, 568 N.W.2d 383 (1997), a defendant who was charged with OUIL/UBAL-3rd had two prior convictions of OUIL/UBAL that had not resulted in incarceration. On the basis of the court rule now codified as MCR 6.610(E)(2), which was then codified as MCR 6.201(E)(2), the district court concluded that one of the prior convictions could not be used to form part of the basis for an OUIL/UBAL-3rd conviction. The district court based its conclusion on the claim that the prior conviction had been obtained without representation by counsel and without proper advice of the right to counsel. The circuit court affirmed. This Court reversed.

This Court noted that the second emphasized portion of the court rule summarized case law existing at the time was promulgated, but that "subsequent developments have undercut the basis for the rule." Reichenbach, supra at 190, 568 N.W.2d 383. This Court also noted that, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the United States Supreme Court held that the Sixth and Fourteenth Amendments of the United States Constitution require only that no indigent person be sentenced to a term of imprisonment without being afforded the right to the assistance of appointed counsel. This Court further noted that, in Nichols v. United States, 511 U.S. 738, 742-744, 114 S.Ct. 1921, 1925-1926, 128 L.Ed.2d 745 (1994), the United States Supreme Court held that a conviction obtained without counsel, and without any advice about the right to appointed counsel, that did not result in a term of imprisonment could be used for enhancement purposes with regard to a subsequent offense. Reichenbach, supra at 190-191, 568 N.W.2d 383. ³ Further, this Court stated that the right to counsel under Const. 1963, art. 1, § 20 provides no broader right to counsel than the Sixth Amendment. Id. at 191, 568 N.W.2d 383. Thus, this Court concluded that the above-emphasized portion of MCR 6.610(E)(2) was invalid as a violation of the constitutional separation of powers to the extent that it would preclude use of a prior conviction to establish the offense of OUIL/UBAL-3rd in a circumstance where use of the prior conviction was not constitutionally proscribed. Id. at 192-193, 568 N.W.2d 383. This Court held that a prior conviction that did not result in incarceration may be used for enhancement purposes, even where the prior conviction had been secured without the defendant having been represented by counsel or having been informed of a right to counsel. Id. at 189, 193, 568 N.W.2d 383.

After defendant's first plea-based conviction, the district court sentenced him to one day in jail as well as two years' probation. However, defendant had already spent one day in the county jail after being arrested, which was credited against his one-day sentence. As another condition of the sentence for the first conviction, defendant was required to participate in a work program for three days, or alternatively to spend three days in jail. Apparently, defendant elected to take part in the work program. While there may be room for debate whether this sentence involved any incarceration, we assume for purposes of our analysis, without deciding as a point of law, that this sentence included a component of incarceration and, thus, that defendant was entitled to counsel in connection with the first OUIL charge.

At the plea hearing regarding the first OUIL charge, the following colloquy occurred with respect to the right to counsel:

The Court: Mr. Asquini, you have met with the prosecutor and you've worked out a plea agreement whereby if you plead guilty to Operating Under the Influence of Liquor he's asking me to dismiss the civil infraction of Preliminary Breath Test Refusal. Is that your understanding of the complete plea agreement?

Defendant Asquini: Yes, it is.

The Court: How do you want to plead to Operating Under the Influence of Liquor?

Defendant Asquini: I'd like to plead guilty.

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The Court: Do you understand that by pleading guilty you're waiving the right to a trial by a judge or jury?

Defendant Asquini: Yes, I do.

The Court: You're waiving the right to have an attorney appointed for you if you can't afford one?

Defendant Asquini: Yes, I do.

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The Court: ... Based on the statements made by the defendant I'll accept the guilty plea to Operating Under the Influence of Liquor; refer Mr. Asquini to the Probation Department for Screening and Assessment and grant the prosecutor's ...